Summary: We will not investigate this complaint about the education provision for the complainant’s daughter. The complaint is late and there is not enough evidence of fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Ms X, complained about a lack of support for her daughter’s education. Ms X says she has been trying for eleven years to get an Education, Health and Care Plan (EHC Plan) for her daughter (Y). Ms X says the lack of an EHC Plan has left Y without support. Ms X wants compensation and for Y to be given the same opportunities as other young people.

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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. 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
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

5. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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.
7. 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)

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How I considered this complaint

8. I considered information provided by the complainant.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. We will not start an investigation into Ms X’s complaint.
11. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. Ms X says she has been trying to get her daughter an EHC Plan for eleven years. The complaint is therefore late. 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 Ms X could not have complained to the Council and the Ombudsman much earlier. The exception at paragraph 3 applies to her complaint.
12. But even if the complaint was not late, it is unlikely we would investigate. In its response to Ms X’s complaint, the Council said it could find no record of a request for an EHC Plan – either from Ms X or Y’s schools. Ms X says a tribunal judge ordered the Council to issue an EHC Plan. But the evidence I have seen relates to a successful appeal for transport via the Council’s own appeals process – not a formal appeal to a tribunal. We could not therefore say the Council was at fault for not issuing an EHC Plan.
13. Even if there was evidence of a request for an EHC Plan, which the Council had refused, it would not be a decision we could consider. That is because if a council refuses to issue an EHC Plan, parents have a right of appeal to the SEND Tribunal. We expect parents to use those rights as it is the method set up by Parliament for parents to challenge such decisions. The Tribunal can order a council to issue an EHC Plan. That is not something we can do and so we will not normally investigate when such appeal rights exist. So, if there was a formal request for an EHC Plan over the last eleven years, then appeal rights would have followed, and an investigation would not be appropriate.

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Final decision

14. We will not investigate Ms X’s complaint because it is late and there is not enough evidence of fault.

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Investigator's decision on behalf of the Ombudsman