Summary: We will not investigate Mrs X’s complaint about the Education Health and Care Plan process. This is because much of the complaint is late and there were appeal rights available. Mrs X has now used her right of appeal. This places a further period complained about outside the Ombudsman’s jurisdiction. It is reasonable for Mrs X to submit a further appeal if she wants to challenge the content of her son’s Education Health and Care Plan. We have no powers to consider complaints about what happens in schools.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the Education Health and Care Plan (EHCP) process. Mrs X says she has been requesting an EHCP for the last six years. The Council has now issued a plan but Mrs X is unhappy with its content. Mrs X is also unhappy with her child’s school.

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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 provider 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. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

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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 not start an investigation into Mrs X’s complaint.
11. Mrs X is unhappy the Council previously refused to issue her son with an EHCP. Much of Mrs X’s complaint is late as we expect people to complain to us within 12 months of them becoming aware of a problem. Mrs X also had the right to appeal the Councils decisions to the SEND Tribunal. We will not normally investigate a complaint when someone can appeal to a tribunal. This exception applies to much of Mrs X’s complaint.
12. Mrs X exercised her appeal rights in November 2021. When an appeal has been made, the Ombudsman has no jurisdiction to consider related matters from the point at which appeal rights were engaged to the point at which the SEND Tribunal issues its decision. The Courts have held that this restriction applies to anything related to the matters at issue in the appeal. We therefore have no jurisdiction to consider this part of Mrs X’s complaint.
13. Following Mrs X’s appeal the Council agreed to issue Mrs X’s son with an EHCP. This is the outcome she wanted. Any concerns about the content of the EHCP can be appealed to the SEND Tribunal. We have no powers to change the content of an EHCP and there is no reason Mrs X should not use her right of appeal. We will not therefore investigate.
14. Any concerns Mrs X has about her son’s school need to be raised with the school. We have no powers to consider complaints about what happens in schools.

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Final decision

15. We will not investigate Mrs X’s complaint. This is because:
• Much of the complaint is late and it was reasonable for Mrs X to appeal the Council’s decisions.
• Mrs X appealed to the SEND Tribunal and a further appeal can be submitted to challenge the content of her son’s EHCP.
• We cannot consider complaints about schools.

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Investigator's decision on behalf of the Ombudsman