Summary: We will not investigate Mr X’s complaint about the Council’s failure to provide him with an education. There are no good reasons the late complaint rule should not apply for the period from May 2022 to January 2023. And we cannot investigate education provision from January 2023 as Mr X appealed to the Tribunal.

The complaint

1. Mr X, says the Council has failed to provide him with a suitable education since he moved into its area in May 2022.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)

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How I considered this complaint

4. I considered information provided by Mr X, via his representative, which included the Council’s reply to his complaint.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X moved into this Council’s area in May 2022. He had an Education Health and Care Plan (EHC Plan). The Council provided an amended EHC Plan in January 2023. Mr X says he had no education from May 2022 until January 2023.
7. Mr X did not agree the EHC Plan would meet his needs and appealed to the Tribunal. That appeal has not finished. Mr X says the setting named in the EHC Plan is not suitable and he cannot attend it.
8. Mr X complained to the Council in March 2024. The Council said it had not provided suitable education in the last 12 months and offered £5800. Mr X is not happy with this. And he says the Council should look at the previous 12 months. The Council has refused to do so. It says Mr X should have complained earlier.

Analysis

9. We should not look at the period May 2022 to January 2023. This period ended more than 12 months ago and Mr X took over 12 months from then to complain to the Council. He has not provided any persuasive reasons it is reasonable for him to have delayed.
10. The courts have settled 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)
11. 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. This applies to Mr X’s case.
12. The period we cannot investigate starts 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. This means we cannot look at the education provided from January 2023 onwards.

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Final decision

13. We will not investigate Mr X’s complaint about the period May 2022 to January 2023 because there are no good reasons the late complaint rule should not apply. And we cannot look at the lack of education from January 2023 as Mr X appealed to the Tribunal.

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Investigator's decision on behalf of the Ombudsman