Summary: We will not investigate Ms X’s complaint the Council delayed issuing amended education and health care (EHC) plans and has not named a new school for her child, Y, from this September. Ms X complains late about the earlier history. She used her right of appeal to the SEND Tribunal on the EHC plan issued last year. It is reasonable for Ms X to use her right of appeal again if there is a dispute about naming a new school.

The complaint

1. Ms X complains the Council delayed in issuing a revised final education and health care (EHC) plan for, for child Y, following reviews in May 2020 and January 2021.
2. Ms X complains the Council’s education and health care plan ignored the recommendations of professionals. Ms X says child Y shared 1 to 1 support with two other children. She says child Y has missed out on education.
3. Ms X complains the Council has not named in the education and health care plan a college for child Y who is due to start this September 2022.
4. Ms X says the Council caused stress and uncertainty, time and trouble, and legal costs.

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The Ombudsman’s role and powers

5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

9. I considered information provided by the complainant and the Council (the 2021 complaint correspondence). I have discussed the complaint with Ms X by telephone.

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My assessment

10. I will not investigate this complaint for the following reasons:
11. Ms X’s complaint about what happened before July 2021 is outside the Ombudsman’s jurisdiction. The complaint is made late and outside the ‘permitted period’ of 12 months (see paragraph 5 and 6). I will not exercise discretion to investigate because Ms X could have complained sooner. The Council’s complaint reply dated 22 April 2021 informed Ms X she could complain to this office, but she did not do so until July 2022.
12. We cannot investigate the content of the EHC plan which Ms X appealed to the Special Educational Needs and Disability (SEND) Tribunal (paragraphs 5 and 7). Ms X tells me the SEND Tribunal decided her appeal early this year and the Council issued a revised EHC plan in April. Ms X’s daughter was doing her final exams from May and there is insufficient injustice to investigate the provision of the plan in the last term of secondary school.
13. Ms X may complain to the Council if there is delay in naming the new education placement. She believes the Council will agree the placement. Should the Council fail to name the college Y has arranged to attend in September, or there is a disagreement about the placement, Ms X can request a review which will provide a new right of appeal to the SEND Tribunal. It is reasonable for Ms X to appeal if she disagrees with an amended EHC plan. She has done so recently and the SEND Tribunal has the power to name the school or otherwise change the plan.

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Final decision

14. The Ombudsman will not investigate Ms X’s complaint the Council delayed issuing amended education and health care (EHC) plans and has not named a new school for her child, Y, from this September. Ms X complains late about the earlier history. She used her right of appeal to the SEND Tribunal on the EHC plan issued last year. It is reasonable for Ms X to use her right of appeal again if there is a dispute about naming a new school.

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Investigator's decision on behalf of the Ombudsman