Summary: We will not investigate this complaint about the education provided to the complainant’s son. There are no good reasons the late complaint rule should not apply.

The complaint

1. The complainant, whom I shall refer to as Ms X, complained the Council failed to provide her son with a suitable education between April and June 2020.

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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, or it was reasonable for them to have appealed. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal or have appealed. (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)

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How I considered this complaint

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

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My assessment

8. We will not start an investigation into Ms X’s complaint.
9. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem – not within 12 months of receiving a final complaint response. 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 why Ms X could not have complained much earlier and so the exception at paragraph 3 applies to her complaint.
10. But even if Ms X’s complaint was not late, it is not one we would investigate. Ms X’s son (Y) has special educational needs and an Education Health and Care Plan (EHC Plan). The background to Ms X’s complaint is that she was unhappy with the school named in Y’s EHC Plan. This led to the period when Ms X says the Council did not provide a suitable education.
11. Parents unhappy with the school named in an EHC Plan have the right to 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. Ms X was unhappy with the school named and felt it was unsuitable for Y. The Council disagreed with this. The mechanism for Ms X to challenge this decision was the SEND Tribunal. It seems Ms X had in fact already appealed to the SEND Tribunal about a different part of Y’s EHC Plan. So, even if the complaint was not late, the school named in the EHC Plan, or the alleged lack of alternative education is not a matter for the Ombudsman.

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Final decision

12. We will not investigate Ms X’s complaint because it is late and there is no good reason for us to now investigate.

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Investigator's decision on behalf of the Ombudsman