Summary: We will not investigate this complaint about the Education Health and Care Plan process. Some of the complaint is late and Mr X appealed to a tribunal. This places most of the complaint outside our jurisdiction. There is not enough fault or injustice from the remainder of the complaint to warrant our involvement.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained about his daughter’s Education Health and Care Plan (EHC Plan). Mr X is unhappy with the school the Council named and how it decided this. Mr X appealed to the SEND Tribunal and is unhappy with the Council’s conduct during the appeal. Mr X wants his legal costs reimbursing. Mr X is also unhappy with the Council’s conduct after the hearing and says it meant his daughter unnecessarily missed time at 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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.
5. Where a complainant has exercised their right of appeal, reference or review or remedy by way of proceedings in any alternative remedy (tribunal, court or ministerial appeal), we have no discretion to investigate. This is the case even if the appeal may not provide or have provided a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916 (“ex parte PH”))
6. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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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 is unhappy with the Council’s actions between September 2021 and February 2022 when it was considering what school to name in his daughter’s EHC Plan. The Ombudsman expects people to complain to us within 12 months of them becoming aware of a problem. This point is therefore late and so we will not investigate.
11. The Council’s actions in the above period also relate directly to the EHC Plan Mr X was unhappy with. Parents who are unhappy with the content of an EHC Plan can appeal to the SEND Tribunal. Mr X has used his right of appeal. When a parent has appealed, the Ombudsman has no jurisdiction to consider related matters from the point at which the appeal rights were available to the point at which the SEND Tribunal issued its decision. The courts have held that this restriction applies to anything related to the matters at issue in the appeal. It includes the Council’s conduct during the appeal process and the information it provided to the Tribunal. We cannot therefore consider this issue.
12. Mr X wants his legal costs reimbursing. But the Tribunal can make cost orders and Mr X asked it to do this. The Tribunal refused. The issue of costs is linked to something we cannot consider and is an issue the Tribunal decided. This point is not in our jurisdiction.
13. What happened after the Tribunal is something we can look at. Once the Tribunal issued its order, the Council had two weeks to issue an EHC Plan naming Mr X’s preferred school. It was then for the school to admit Mr X’s daughter. Based on the evidence available, any delay and the associated injustice was not significant enough to warrant the Ombudsman investigating.
14. Mr X is also unhappy with how long the Council has taken to deal with his complaint. I understand his frustrations as it is clear the Council has taken far too long. We will not, however, normally investigate complaint handling if we are not going to look at the matter which led to the original complaint. This is the case here. I would hope though the Council will respond to Mr X without any further delays. Any issues not dealt with above could form part of a fresh complaint to the Ombudsman.

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Final decision

15. We will not investigate Mr X’s complaint. Some of it is late, Mr X has appealed to a tribunal, and where the case is within our jurisdiction, any fault by the Council is not significant enough to warrant an investigation.

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Investigator's decision on behalf of the Ombudsman