Summary: We will not investigate this complaint about matters of educational provision and social care assistance. The complaint about matters before 2023 is late and there is no good reason to exercise discretion to investigate it now. The complaint about educational provision is not separable from matters where Miss X used her right of appeal to the Special Educational Needs and Disability Tribunal. There is no evidence Miss X has complained to the Council about matters of social care provision since January 2023 or since the Tribunal hearing. Once she has done so, she would be welcome to return to us promptly about those matters.

The complaint

1. Miss X said the Council failed to assist her and her child over several years. She said the Council:

• Failed to offer educational provision after her child became unable to attend school in 2021, and she was only able to resolve this after appealing to the Special Educational Needs and Disability (SEND) Tribunal in 2023; and
• Failed to offer social care assistance despite her being barely able to leave the house due to her child’s needs.

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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 has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. The courts have held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999);  R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407

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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. Matters prior to 2023 are late. We may investigate late matters if a person was unaware of them at the time, or if they were unable to complain. Neither reason applies her. Miss X was aware of the matters she complains of, and she was able to appeal to the SEND Tribunal. She could have contacted us sooner about matters dating from 2022 or earlier.
10. Where matters after January 2023 concern the educational provision for Miss X child, these were subject to the decision of the SEND Tribunal in July 2023. Even though the Tribunal may not have commented on any alternative educational provision offered by the Council, it is not separable from the reason for the appeal.
11. Matters concerning social care provision and a carer’s assessment since January or July 2023 are likely to be separable from the matters referred to in the previous two paragraphs and we might investigate them. However, I have seen no evidence that Miss X has complained to the Council about these matters since January 2023. She should do so, and return to us promptly if she remains dissatisfied either at the end of the Council’s complaint process, or if the Council fails to deal with her complaint within 12 weeks of her making it.

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Final decision

12. We will not investigate Miss X’s complaint because:

• Matters before 2023 are late, and there is no good reason to exercise discretion to investigate the complaint about them now; and
• Miss X used her right of appeal to the SEND Tribunal regarding her child’s educational needs and the issue of alternative education in the period before July 2023 is not separable from the matter of what education the child should receive.

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Investigator's decision on behalf of the Ombudsman