Summary: We will not investigate this complaint about special educational needs provision and the Education Health and Care Plan process. The complaint is late and Mr X appealed to a tribunal. This places the complaint outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained about the education provision for his son (Y) who has an Education Health and Care Plan (EHC Plan). Mr X says the Council failed to provide a suitable education and named an inappropriate school in Y’s EHC Plan. Mr X says this meant he had to appeal to the SEND Tribunal. Mr X funded Y’s education until the SEND Tribunal ruled in his favour. Mr X wants the Council to reimburse his costs.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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.

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How I considered this complaint

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

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My assessment

9. We will not investigate Mr X’s complaint.
10. Mr X’s concerns about the education provided to Y date back to 2019. As explained in paragraph 2, the Ombudsman expects people to complain to us within twelve months of them becoming aware of a problem. Mr X’s complaint is therefore late. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so. I do not consider that to be the case here. I see no reason Mr X could not have complained much earlier and so the exception at paragraph 3 applies to his complaint.
11. But even if Mr X’s complaint was not late, it is not one we would investigate. Mr X’s concerns about the education provided to Y are inextricably linked to the content of Y’s EHC Plan. Parents who are unhappy with the content of an EHC Plan can appeal to the SEND Tribunal. We generally expect parents to use this right. This is because the Tribunal can order a council to change the content of an EHC Plan. This is not something we can do.
12. But when a parent appeals to the SEND Tribunal, we have no jurisdiction to consider related matters from the point at which the appeal rights were engaged, to the point at which the SEND Tribunal issued its decision. The Courts have held we cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means we cannot look at the content of the EHC Plan, the education provided during the appeal process, or the Council’s conduct during the appeal itself. Any costs incurred by Mr X are not something we can consider because they are linked to the appeal – which itself is outside our jurisdiction.
13. Mr X’s complaint is therefore not one we will investigate.

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Final decision

14. We will not investigate Mr X’s complaint because it is late and he has appealed to a tribunal. This places the complaint outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman