Summary: We will not investigate this complaint that the Council has failed to provide a child with suitable education provision for six years. Some elements of the complaint are made late, and some are not separable from matters that either have been or reasonably could have been appealed to a tribunal.

The complaint

1. Miss X complains that the Council has failed to provide her son with suitable education provision for the last six years.

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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 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)
4. 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)
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. 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

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. I will not investigate Miss X’s complaint about how the Council has managed her son’s education going back six years. This is because it is reasonable for Miss X to have raised concerns about historic matters sooner. For this reason, I have only considered the Council’s actions from early 2023.
10. The Council issued a final Education Health and Care (EHC) plan for Miss X’s son in February 2023. It named a mainstream primary school until July 2023 and then a mainstream secondary school from September 2023. The Council issued an amended final EHC plan in September 2023 which named the same secondary school.
11. I will not investigate Miss X’s complaint. If she disagreed with the Council’s decision to name, the primary school until July 2023 in her son’s EHC plan it would have been reasonable for her to have submitted an appeal to the SEND Tribunal. I note that in her complaint to the Council in April 2023, Miss X said that her son was attending the primary school, but that Miss X disagreed with the Council’s decision to consult with the secondary school named from September 2023.
12. I cannot investigate the Council’s decision to name the mainstream secondary school from September 2023. This is because Miss X has appealed this decision to the SEND Tribunal placing it outside of our jurisdiction. We cannot investigate a complaint that Miss X’s son is not receiving a suitable education whilst her appeal is ongoing. This is because her son’s non-attendance is not separable from the reasons for her appeal, which are that the placement named is not suitable.

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Final decision

13. We will not investigate Miss X’s because some matters are late and some are not separable from matters that either reasonably could have been or that have been appealed to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman