Summary: We will not investigate this complaint about the education and care provision made by the Council for the complainant’s son. The complaint about matters between 2018 and 2022 is late and there are insufficient grounds to consider it now. Matters which took place in 2023 and 2024 are not separable from those about which it would have been reasonable for the complainant to use her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, Ms X, says the Council has failed to ensure her son’s educational and care needs have been met from 2018 to date.

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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 cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
5. 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)
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 considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Ms X’s son has special educational needs and an Education Health and Care (EHC) plan. Ms X says the Council and her son’s school have been at fault in failing to meet his needs since 2018.
10. Ms X says her son has not has an educational psychology assessment since 2016. She argues that her son’s needs have never been properly recognised and that his provision has not been adequate. She argues that the Council is at fault in failing to recognise the nature of her son’s needs and ensure appropriate provision is in place.
11. Ms X further complains that the Council has failed to respond to her complaint. She wants the services provided to her son since 2018, to be reviewed, as she believes fault on the Council’s part throughout the period has disadvantaged her son.
12. The Ombudsman will not consider Ms X’s complaint about matters which took place before 2023 because it is late. Late complaints are when someone takes more than a year to complain to us. This applies to all matters between 2018 and 2022 and there are no grounds for us to consider them now.
13. During 2023, the Council issued an amended EHC plan for Ms X’s child. If Ms X believed her son’s needs were not being properly recognised, or that the failure to carry out an educational psychology assessment had negatively affected his provision, the reassessment offered the opportunity to address this. If she felt it had not done so, and the resulting EHC plan was flawed, she had the right to appeal to the SEND Tribunal.
14. Where appeal rights exist, the Ombudsman expects them to be used, and it would have been reasonable for Ms X to do so here. Ms X and the Council have differing views on the nature of her son’s needs and the appropriate provision to address them. It is not for the Ombudsman to express a view. That is a matter which is properly for the SEND Tribunal to determine. There is no role for the Ombudsman and we will not intervene.
15. The evidence does not support Ms X’s contention that the Council has not addressed the issues she raised in her formal complaint. Its response set out its view that it has identified her son’s educational needs and said it would meet with her to discuss how it could work with the school to ensure they are met. It also advised her to contact social care if she felt his non-educational needs were not being met.
16. I understand that Ms X does not regard he Council’s complaint response as adequate. But it appears to be a reasonable response in the circumstances, given that we are not considering matters before 2023.
17. The evidence Ms X has provided shows that she has continued to correspond with the Council since its formal complaint response. Any new matters she has raised do not fall to be considered as part of this complaint.

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Final decision

18. We will not investigate Ms X’s complaint. This is because her complaint about matters between 2018 and 2022 is late and there are insufficient grounds to consider it now. Matters which took place in 2023 and 2024 are not separable from those about which it would have been reasonable for the complainant to use her right to appeal.

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Investigator's decision on behalf of the Ombudsman