Summary: We cannot investigate Mrs X’s complaints about the Council’s refusal to assess her son for an Education Health and Care Plan and about the content of the final Plan. This is because Mrs X has appealed against the Council’s decisions. We will not investigate alleged delay by the Council in reaching its decision not to assess Mrs X’s son as the complaint is late and we consider it would have been reasonable for her to complain to us sooner.

The complaint

1. The complainant, Mrs X, complains the Council failed to carry out an Education Health and Care (EHC) Needs Assessment for her son and later issued an EHC Plan which did not accurately address his needs. She has spent more than £15,000 on professional and solicitor’s fees to dispute the Council’s decisions and appeal against them and wants the Council to reimburse her costs and pay compensation. She also believes we should fine the Council for its actions.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. We may decide to investigate if we consider it would be unreasonable to expect the person to appeal but cannot investigate if the person has already appealed. (Local Government Act 1974, section 26(6)(a), 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. 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)

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How I considered this complaint

6. I considered information provided by Mrs X and the Ombudsman’s Assessment Code.

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My assessment

7. We cannot investigate any complaint about the EHC Needs Assessment process or the content of the Council’s EHC Plans. This is because Mrs X has appealed against the Council’s decision not to conduct an assessment and the initial EHC Plan. Any complaint about how the Council reached its decisions is too closely related to the decisions themselves and is therefore not separable from the matters which have been subject to an appeal. We also cannot recommend a remedy for Mrs X’s costs incurred as part of the appeals process and have no power to issue fines to the Council.
8. Mrs X claims some delay by the Council in reaching its initial decision not to carry out an assessment but although this issue is not caught by the exclusion set out at Paragraph 3, it relates to the period March-November 2021 and Mrs X did not complain to us about it until October 2023. The complaint is therefore some 12 months late and I have seen no good reasons to exercise our discretion to investigate it.

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Final decision

9. We will not investigate this complaint. This is because the issues Mrs X raises fall outside our jurisdiction. We cannot look at the way the Council reached its decisions as Mrs X has appealed to the SEND Tribunal and any complaint about delay in its decision not to assess her son in 2021 is late.

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Investigator's decision on behalf of the Ombudsman