Summary: We will not investigate this complaint that the Council has failed to address the complainant’s son’s special educational needs and has failed to make alternative educational provision for him. Her complaint about the period before her son’s Education Health and Care Plan was issued is late and there are no grounds for us to investigate it now. Her appeal to the First Tier Tribunal (Special Educational Needs and Disability) places subsequent matters outside our jurisdiction.

The complaint

1. The complainant, Ms X, complains that the Council has failed to address her son’s special educational needs and has failed to make alternative educational provision for him.

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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 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.

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Ms X’s son has special educational needs. Ms X says he has not attended school since December 2022, and she complains that the Council has failed to make appropriate alternative educational provision for him since.
9. The Council began an Education Health and Care Needs Assessment in January 2023, which resulted in an Education Health and Care (EHC) Plan being issued in July 2023. Ms X complains, and the Council accepts, that the EHC Plan was not issued within the timetable set out in statutory guidance.
10. Ms X complains that the EHC Plan did not identify and address her son’s needs. When he attended the school named in September 2023, it could not make appropriate provision for him. Ms X subsequently complained to the Council that it had failed to ensure appropriate alternative provision was put in place. She appealed to the SEND Tribunal against the content of the EHC Plan in January 2024.
11. In response to Ms X’s complaint, the Council has accepted that the EHC Plan was delayed. It has also found that it failed to ensure appropriate provision was in place from November 2023. Ms X regards the Council’s response as inadequate.
12. The Ombudsman will not investigate Mrs X’s complaint about matters which took place before the EHC Plan was issued in July 2023 because it is late. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. This applies to the complaint about the period up to and including July 2023 and there are no grounds for us to consider it now.
13. Matters since the end of July 2023 fall outside the Ombudsman’s jurisdiction. By law, we cannot investigate them. This is because Ms X has used her right to appeal to the SEND Tribunal. This prevents us from investigating matters relating to the content of the EHC Plan, including the evidence used in its production.
14. The courts have also established that if someone has appealed to the SEND 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)
15. This means that if a child is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, 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. The complaint correspondence shows that Ms X’s appeal relates to such matters.
16. The period we cannot investigate starts from the date the EHC Plan is issued. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the SEND Tribunal comes to its decision, or if the appeal is withdrawn or conceded. By law, we cannot therefore consider the period since the Council issued Ms X’s son’s EHC Plan. There is no discretion available to us.

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Final decision

17. We will not investigate Ms X’s complaint. Her complaint about the period before her son’s EHC Plan was issued is late and there are no grounds for us to investigate it now. Her appeal to the SEND Tribunal places subsequent matters outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman