Summary: Mrs X complains there were failings in the way the Council dealt with her son’s special education needs and carried out an Education Health and Care (EHC) needs assessment causing distress and loss of educational provision. We will not investigate Mrs X’s concerns about the EHC needs assessment in 2022 to 2023 because the complaint is late. We will not investigate Mrs X’s complaints about the Council’s decision not to issue an EHC Plan, and when it did, the school setting for Y as Mrs X has the right of appeal against the decisions. So, we have ended our investigation.

The complaint

1. Mrs X complains about the way the Council dealt with her son Y’s special educational needs. In particular Mrs X says the Council:
• Delayed the Education Health and Care (EHC) needs assessment for Y following a request in 2022.
• Failed to engage in mediation following a decision not to issue Y with an EHC Plan in 2023.
• Named an inappropriate setting in section I of Y’s EHC Plan when it agreed to issue a EHC Plan in 2023.
2. Mrs X says the issues caused Y to miss educational provision and caused her distress and frustration. Mrs X wants the Council to make a symbolic payment and name a mainstream school for Y in section I of the EHC Plan.

Back to top

The Ombudsman’s role and powers

3. 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:
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal,
• there is no worthwhile outcome achievable by our investigation.

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

4. The Local Government Act 1974, as amended, sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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)
7. 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)
8. 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.
9. The courts have established 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)
10. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
11. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
12. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

13. I considered the information Mrs X provided.
14. I considered information from the Council and the supporting documents it provided and reviewed the relevant law and guidance.
15. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Education Health and care Plan

16. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.

Appeal rights

17. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

Events leading to the complaint

18. Y was attending a final year at a middle school before transferring to a mainstream secondary school in September 2023. Y has been diagnosed with ASD.
19. What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
20. In September 2022 following a request from Mrs X, the Council agreed to carry out an EHC needs assessment on Y to see if he needed an EHC Plan. Mrs X complained to the Council in January 2023 it had failed to meet the 12-week timeframe for a decision on the EHC needs assessment. Mrs X said this impacted on Y as the school did not meet his needs. The Council apologised to Mrs X in February 2023 for the for delay in the EHC needs assessment and advised it was still waiting for professional advice about Y.
21. Mrs X asked to escalate her complaint in May 2023 because of the delay in carrying out the EHC needs assessment. Mrs X said Y was still being impacted by the delay. The Council responded in July 2023 and apologised for the delay which was due to waiting for advice from an educational psychologist. This was caused by the national shortage of education psychologists. The Council received the advice and issued a decision on 1 August 2023 not to issue Y with an EHC Plan. This was because it considered Y’s need could be met with SEN support at his educational placement.
22. Mrs X sought to mediate with the Council through a mediation service as she disagreed with the Council’s decision not to issue an EHC Plan. Y started at secondary school in September 2023.
23. Mrs X complained to the Council in November 2023 she and a mediation service had chased the Council several times to arrange mediation without success causing her distress and frustration.
24. The Council responded in January 2024. It explained Mrs X had not received a response about mediation due to the officer dealing with it leaving the Council. The Council advised it had a new officer in place who would respond to the requests. The Council said Mrs X could request a mediation certificate and use it to register an appeal to the SEND Tribunal.
25. Mrs X made a further complaint in February 2024 Y was missing opportunities in school due to the Council’s delays as his needs were not being met. Mrs X asked the Council to issue Y with an EHC Plan and provide financial compensation. In March 2024 Mrs X told the Council Y had been permanently excluded from school. The Council arranged for Y to attend a specialist provision.
26. The Council responded to Mrs X’s complaint and decided to overturn the decision not to issue EHC Plan. So, Y would now receive an EHC Plan.
27. The Council issued a final EHC Plan for Y in June 24 naming the specialist provision Y was attending. Mrs X appealed to the SEND Tribunal as she wished Y to attend a mainstream school. Mrs X also sought mediation with the Council about the EHC Plan. Ms X complained to us in July 2024.
28. The Council agreed to further explore school options for Y and in October 2024 issued a final amended EHC Plan naming Mrs X and Y’s preferred mainstream school as the setting for Y.

My assessment

29. As paragraph five explains 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. In this case Mrs X requested an EHC needs assessment in September 2022 and first complained to the Council about delays in carrying out the needs assessment in January 2023.
30. While the Council appears to have not complied with the timescales of the statutory process Mrs X did not complain to us about the Council’s delays until July 2024. Therefore, I consider Mrs X’s complaint about the EHC needs assessment delay is late. And it was reasonable to expect Mrs X to have complained to us about the delay before July 2024. I do not consider there are good grounds for us to exercise discretion to investigate Mrs X’s complaints of delay now. So, I am ending my investigation into this part of Mrs Y’s complaint.
31. In addition, the Council issued a decision on whether to issue Y with an EHC Plan in August 2023. It decided not to issue an EHC Plan. Mrs X had the right of appeal to the SEND Tribunal about the Council’s decision. As paragraph six explains 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.
32. I consider it was reasonable to expect Mrs X to use that right to secure the named setting and provision she wanted for Y. Only the SEND Tribunal or the Council can direct changes to the sections about a child’s needs, education or the name of the educational placement. So, we will not investigate any concerns Mrs X raised after August 2023 including the mediation process as we cannot achieve the outcome Mrs X wants. And the SEND Tribunal is another body better placed to consider Mrs X’s concerns about Y’s placement and provision. Because of this I am ending my investigation into this part of Mrs Y’s complaint.
33. In March 2024 the Council decided to overturn the decision not to issue Y with an EHC plan and it issued a final EHC Plan in June 2024. Mrs X exercised her right of appeal to the SEND Tribunal as she disagreed with the placement the Council named for Y. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. So, we are unable to investigate this part of Mrs Y’s complaint, and I am ending my investigation into this part of Mrs Y’s complaint.

Back to top

Final decision

34. I am ending my investigation. There are no grounds for us to investigate Mrs X’s complaints. This is because parts of Mrs X’s complaints are late, and she has the right of appeal to the SEND Tribunal about the content of Y’s EHC Plan.

Back to top

Investigator's decision on behalf of the Ombudsman