Summary: We will not investigate this complaint about the Council’s actions concerning Mrs X’s child’s special educational needs and educational provision since 2020. The complaint about the child not receiving sufficient education from early 2020 is late and there is no good reason to exercise discretion to investigate this now. Other matters are not separable from a right to appeal to a Tribunal that Mrs X used. A legal ruling prevents us investigating matters between July 2021, when the Council issued an Education Health and Care Plan, and July 2022, when it issued a fresh Plan. There is not enough evidence of injustice caused by fault by the Council in the remaining matters to warrant investigation by us.

The complaint

1. Mrs X said the Council:
1. Left her child on a part-time timetable between January 2020 and April 2021;
2. Refused a request to carry out a sensory integration assessment despite her child having a diagnosis of autistic spectrum disorder (ASD);
3. Overlooked how her child was affected by ASD;
4. Failed to make the provision in her child’s Education Health and Care (EHC) Plan;
5. Failed to offer alternative educational provision when her child was unable to attend school;
6. Failed to carry out annual reviews of her child’s EHC Plan; and
7. Obstructed the complaint process by ignoring requests for escalation.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
5. 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.
6. The courts have held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999);  R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407
7. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. We will only investigate matters over 12 months old where we find a good reason to exercise the discretion available to us to do so. A person may be unaware of a matter they later complain of at the time it happens. They may also be prevented from complaining at the time. Both of these would be good reasons.
11. Mrs X first approached us in August 2022. She had been aware since early 2020 of the amount of education her child was receiving. She had complained to the Council in September 2021 and received a second stage response to that complaint in November 2021. It asked her to contact a named officer if she remained dissatisfied. The evidence shows she asked for escalation, but have seen no evidence of a response.
12. Any failure by the Council to escalate her complaint might have delayed Mrs X approaching us. This is why I have not excluded later matters in the other points of complaint that occurred more than a year before August 2022. However it was 20 months after Mrs X was first aware of the amount of education her child was receiving before she complained to the Council. Had the Council escalated her complaint promptly and she approached us without further delay, I would still have found no good reason to exercise discretion to investigate a matter she had been aware of since early 2020.
13. Decisions about carrying out assessments and considering how a child is affected by a diagnosed condition, as in points b) and c), are not separable from the Council’s decisions about the nature of the child’s SEN and the provision required to meet those needs. They are matters in respect of which there is a right of appeal to the SEND Tribunal it was reasonable to use.
14. Between July 2021, when the Council issued a final EHC Plan that Mrs X appealed against, to July 2022, when it issued a further EHC Plan, naming a school that Mrs X found met her child’s needs, we are limited by the legal ruling referred to in paragraph 6. This prevents us investigating point e) of the complaint about whether the Council should have offered alternative provision outside the school named for Mrs X’s child during that period. I will deal with the period from April to July 2021 later.
15. We could only investigate whether the Council made the SEN provision specified between July 2021 and July 2022 if the child had attended the educational setting named. The child did not attend the school the Council named in the EHC Plan of July 2021. Therefore, I cannot say there was fault by the Council in failing to make the provision named at the school named.
16. Regarding point f), the evidence I have seen refers on several occasions to two reviews of the child’s EHC Plan. The first of these was in May 2021 and led to the final EHC Plan against which Mrs X appealed. The second was planned for June 2022, but was overtaken by an offer of a school which Mrs X accepted, resulting in a fresh final EHC Plan naming the preferred school. It is unlikely that we would find enough fault causing injustice in the Council’s actions to warrant investigation. This is because the first review reached a clear view that resulted in a prompt outcome that gave Mrs X a right of appeal to the SEND Tribunal that she used. And the second occasion coincided with an offer that led promptly to the issue of an EHC Plan that was not disputed.
17. The period April to July 2021 in point e), the initial period when the child stopped attending school altogether is not excluded from investigation by virtue of lateness, or by the court ruling mentioned in paragraph 6. The Council had a duty to respond during that period to decide if the absence from school was truancy, or if there was a need for alternative educational provision. There is a degree of latitude available to councils depending on circumstances. It would be a matter of judgement, not fault, to decide that a child who had a history of difficulties in attending full-time educational provision, might not be able to cope with full-time educational provision. It is clear from the evidence that the Council relied upon the child’s school’s view that it could meet the child’s SEN and that the best approach was to try to re-integrate the child into education there. While not all school views prove to be right, the school was an independent special school and had known the child for some time. That this was a considered decision by the Council is supported by the Council’s decision to name the school in Section of the EHC Plan it issued in July 2021. That Mrs X disagreed with the Council’s view that her child could be re-integrated into the school is not evidence that the Council should have offered another form of education.
18. Regarding point g), the evidence suggest the Council failed to escalate Mrs X’s complaint when she requested at the end of 2021 and start of 2022. However, I have not found fault causing injustice in the substantive matters complained of, some of which are matters we will not investigate or cannot investigate. Therefore, investigation by us of the Council’s complaint handling alone is not warranted.

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Final decision

19. We will not investigate Mrs X’s complaint because the matters complained of are either:

• Late, with no good reason to exercise the discretion available to investigate them; or
• Not separable from the right to appeal to the SEND Tribunal that Mrs X used; or
• Matters a legal ruling prevents us investigating; or
• Where there is not enough injustice caused by Council fault to warrant investigation.

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Investigator's decision on behalf of the Ombudsman