Summary: We will not investigate Mrs X’s complaint about delays in the Education, Health, and Care needs assessment for her son and in issuing a final Plan. Or the Council’s failure to identify a suitable school or provide alternative educational provision or the therapeutic provision specified in her son’s EHC Plan. This is because her complaint is late and Mrs X has exercised her right of appeal to the Special Educational Needs and Disability Tribunal.

The complaint

1. The complainant, Mrs X complained about delays in the Education, Health, and Care needs assessment and in issuing a final Plan. Mrs X also complained the Council failed to identify a suitable school or provide alternative educational provision or the therapeutic provision specified in her son’s EHC Plan. And it failed to agree a personal budget.
2. Mrs X also complains about a lack of communication and the Council’s conduct in the Tribunal process.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully.
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. In addition, we cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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 have considered the complaint and the documents provided by Mrs X and the Council and discussed the issues with Mrs X. I have also sent a statement setting out my draft decision to them both and invited their comments.

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What I found

What happened here

8. Mrs X requested an EHC needs assessment for her son, Y in October 2021. The Council agreed, but did not issue a final EHC Plan until 1 August 2022. The whole process from Mrs X requesting an EHC assessment to the Council issuing a final EHC Plan should have taken 20 weeks.
9. The EHC Plan named the type of setting rather than a specific school. Mrs X appealed to the SEND Tribunal in relation to the type of setting and the content of the EHC Plan.
10. Y was due to begin school in September 2022 but Mrs X asked for this to be deferred to January 2023. She complains the Council failed to identify a suitable school for Y by January 2023 and did not provide any alternative provision. Mrs X made several requests for a personal budget to pay for physiotherapy for Y, and is unhappy the Council did not agree to her requests.
11. Miss X also complains the Council refused to communicate with her solicitors during the Tribunal process and did not adhere to the Tribunal deadlines.
12. In September 2023 the Council agreed in principal to name Mrs X’s preferred school, School 1 in the EHC Plan. The Tribunal hearing was vacated to allow Mrs X and the Council to try and resolve the remaining issues. The Council issued an amended EHC Plan naming School 1 in February 2024.
13. The remaining issues were then decided by the Tribunal in May 2024.

Analysis

14. As set out above, there are restrictions on the issues that we can investigate. Of relevance here is the time limit for bringing complaints to our attention. We expect people to raise their complaints within 12 months of them becoming aware of the issue(s) they are complaining about. Mrs X initially contacted us in November 2023. We would therefore generally only investigate events since November 2022. We do have discretion to consider complaints about events outside this time frame where there are good reasons for the late complaint and we are confident there is a realistic prospect of reaching a sound, fair, and meaningful decision.
15. I do not consider it appropriate to exercise discretion here to investigate events prior to November 2022. Mrs X complained to the Council about the delays in the EHC assessment process and the failure to issue a final EHC Plan in July 2022. The Council responded to her concerns in November 2022 and told her she could complain to the Ombudsman if she remained unhappy. It was open to Mrs X to raise her concerns about these delays with the Ombudsman much sooner. We will not now investigate these issues.
16. While we can consider events since November 2022, there are also restrictions on our jurisdiction where a complainant has exercised their right of appeal to the SEND Tribunal. We cannot trespass in anyway on the jurisdiction of the Tribunal.
17. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
18. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
19. We cannot investigate from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
20. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
21. In addition, we cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
22. The Council issued the final EHC Plan on 1 August 2022, giving rise to Mrs X’s right of appeal, and the Tribunal issued a decision on 17 May 2024. We cannot consider the Council’s actions or lack of action during this period. This would include the failure to identify a suitable school for Y in January 2023 or to provide alternative education provision or the therapeutic provisions in his EHC Plan.
23. Nor can we consider the Council’s conduct in the Tribunal process.
24. The restrictions on our jurisdiction mean we are unable to investigate Mrs X’s complaints.

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Final decision

We will not investigate Mrs X's complaint as it is late and Mrs X has exercised her right of appeal to the SEND Tribunal.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman