Summary: We will not investigate this complaint about the Education Health and Care Plan process for the complainant’s child. Part of the complaint is late, and the complainant has now appealed to a tribunal. This places the complaint outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Miss X, complained about the Education Health and Care Plan (EHC Plan) process for her son (Y). Miss X says the Council used an outdated EHC Plan when consulting with secondary schools in 2019. Miss X says her son was then placed in an inappropriate secondary school and the Council would not pay for transport. Miss X says the Council named an inappropriate secondary school in her son’s revised EHC Plan meaning he has missed time at school. Miss X wants the Council to provide her son with a tutor, arrange for him to be assessed, and to pay compensation.

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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 or could have appealed 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 start an investigation into Miss X’s complaint.
10. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. 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. Miss X’s concerns about how the Council consulted with schools in 2019 and the decision not to provide transport to school are both late. I see no reason why Miss X could not have complained much earlier and so the exception at paragraph 3 applies to these parts of her complaint.
11. We will also not consider Miss X’s complaint about the school named in her son’s EHC Plan. This is because parents unhappy with the content of an EHC Plan can appeal to the SEND Tribunal. We expect people to use this right unless we consider it unreasonable for them to do so. The Tribunal can say what school should be named in an EHC Plan. We have no powers to do this. This option was available to Miss X from when the Council issued her son’s EHC Plan.
12. When an appeal has been made to the SEND Tribunal, we have no powers to consider related matters from the point at which the appeal rights were engaged to the point at which the SEND Tribunal issues its decision. Miss X has now appealed. The Courts have held we cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This includes the content of the EHC Plan, how this was decided, and the Council’s conduct during the appeal process. We also cannot look at the education provided if the school named in the EHC Plan is the subject of the appeal. This part of the complaint is outside our jurisdiction with no discretion to investigate.

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Final decision

13. We will not investigate Miss X’s complaint because part of it is late and she has appealed to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman