Summary: We will not investigate this complaint about Special Educational Needs provision and Education, Health and Care plans because it is late without good reasons to exercise discretion to investigate it now.

The complaint

1. Miss Y complained the Council:

• Failed to communicate with her properly during the Education, Health and Care Plan (EHC) process;
• Failed to update her son’s EHC plan despite requests;
• Failed to make the 1:1 provision as agreed or ensure her son received an appropriate education for his needs; and
• Failed to provide information following a Subject Access Request (SAR);

2. Miss Y says this has significantly affected her son’s education and his mental health has declined.

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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 normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I considered Miss Y information provided and the Ombudsman’s Assessment Code.

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My assessment

7. Miss Y complained to the Council in 2021. The Council responded to her complaint in May 2021. Miss Y later made a SAR to the Council in 2022. The Council contacted Miss Y in December 2022, explaining that due to the high number of requests it was not able to fully respond to her request. Miss Y then approached us in June 2023.

Analysis

8. The ICO is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation. This includes failure or delay to provide information.
9. There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about data protection, the Ombudsman usually expects them to bring the matter to the attention of the ICO. Miss Y has not provided good reasons to show we should investigate this complaint, where the ICO is available. We will not investigate.
10. The law says people should normally complain to us within 12 months of becoming aware of an issue. Complaints brought to the Ombudsman more than 12 months after someone becomes aware of something a council has done are considered late. We cannot investigate late complaints unless we decide there are good reasons.
11. Miss Y’s was aware of her reason to complain about the Council’s actions when she initially complained to the Council in 2021, more than 12 months ago. Consequently, her complaint is now late. We have discretion to disapply the rule outlined in paragraph four where we decide there are good reasons. Miss Y has not provided any good reasons why she did not bring her complaint to us within 12 months of knowing about the matter. It is reasonable to expect her to have complained sooner so we will not investigate.

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Final decision

12. We will not investigate Miss Y’s complaint because it is late without good reasons to exercise discretion to investigate it now.

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Investigator's decision on behalf of the Ombudsman