Summary: Mr X complained about the way the Council handled his son’s Education, Health and Care plan. Mr X said his son missed out on education and social/emotional opportunities. He said it caused unnecessary distress, inconvenience, and cost him time and trouble. We cannot investigate this complaint because it is outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, who I refer to here as Mr X, complains about the way the Council dealt with his son’s Education, Health and Care (EHC) plan. Specifically, he complains that the Council:
1. failed to fully assess his son before issuing the final EHC plan;
2. delayed issuing the final EHC plan;
3. failed to make appropriate safeguarding checks when identifying a school for his son;
4. used the appeal process inappropriately and vexatiously; and,
5. communicated poorly with him.
2. Mr X said the delayed school placement meant his son missed out on education and social/emotional opportunities. He said it caused unnecessary distress to his son and the family, as well as inconvenience, and cost him time and trouble. He also said there was a significant financial impact, having paid for private assessments for his son and for a solicitor for the appeal process.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))

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How I considered this complaint

9. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.

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What I found

Education, Health and Care (EHC) plans

10. Under the Children and Families Act 2014, when an Education, Health and Care needs assessment is completed by a council and it shows a need for special educational provision, the local authority must prepare and maintain an Education, Health and Care (EHC) plan.
11. A child’s parent, or the young person named in the plan, can appeal to the first-tier tribunal (the SEND Tribunal) to challenge the content of an EHC plan. The right to appeal is triggered once the council has issued the final EHC plan.

What happened

12. Mr X has a son, C, who has special educational needs and an Education, Health and Care (EHC) plan.
13. In June 2020, the Council issued C’s final EHC plan. Mr X appealed to the SEND Tribunal against the EHC plan. The Tribunal issued its final ruling in February 2021.
14. In October 2021, Mr X complained to the Council.
15. In December 2021, Mr X brought his complaint to the Ombudsman.

Findings

SEND Tribunal

16. Mr X complains that the Council failed to fully assess his son, C, before issuing the final EHC plan (part a of the complaint), and that the Council used the appeal process inappropriately and vexatiously (part d of the complaint).
17. As I have said above, we cannot investigate a complaint if someone has appealed to a tribunal. Mr X appealed the content of C’s EHC plan at the SEND Tribunal. The quality of assessments or lack of assessment for an EHC plan (part a of the complaint) are therefore outside the Ombudsman’s jurisdiction.
18. Also, we cannot investigate a complaint about any action by a council concerning a matter which is itself out of our jurisdiction. Therefore, I cannot consider the Council’s use of the tribunal process (part d of the complaint).
19. For these reasons, I cannot investigate parts a and d of this complaint.

Time

20. Mr X complains that the Council delayed issuing the final EHC plan (part b of the complaint), failed to make appropriate safeguarding checks when identifying a school for C (part c of the complaint), and communicated poorly with him (part e of the complaint).
21. Mr X knew about these problems when the final EHC plan was issued in June 2020. Mr X did not bring his complaint to the Ombudsman until December 2021.
22. As I have said above, we cannot investigate complaints where someone takes more than 12 months to complain to us about something a council has done. There has to be an exceptional reason for the Ombudsman to consider exercising discretion to investigate in such circumstances.
23. Mr X says he believed he could not bring his complaint to the Ombudsman until after the Council had concluded its complaints process. He says he did not complain to the Council until after the Tribunal because he did not want to prejudice the process. Mr X says he waited eight months to complain to the Council after the Tribunal because he wanted a period of time emotionally to get over what happened and have a ‘recharge’. He then decided it was time to complain.
24. Overall, I consider that reasonable opportunities existed for Mr X to have pursued this matter in a more timely fashion, and within the time limits laid down in law. As such, I have decided there are no good reasons to exercise the Ombudsman’s discretion to investigate parts b, c and e of the complaint.

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Final decision

25. I have completed my investigation. I cannot investigate parts a or d of this complaint, and I will not investigate parts b, c or e of the complaint. This is because all parts of this complaint are outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman