Summary: We will not investigate this complaint about the Education, Health and Care Plan process for the complainant’s child. The complaint is late, it was reasonable for the complainant to use their appeal rights, and there is no worthwhile outcome we could now achieve.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council failed to consult with her preferred school during the 2020/21 academic year. Mrs X says this means the Council named an inappropriate school in her child’s Education, Health and Care Plan (EHC Plan). Mrs X says she has only recently discovered errors with the consultation process.

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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. 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)
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 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 there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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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. We will not start an investigation into Mrs X’s complaint.
10. Mrs X says she has only just discovered the Council failed to consult with her preferred school. But the decision Mrs X says this led to was taken by the Council in February 2021 – when the Council named what Mrs X considers to be an inappropriate school. A complaint about that decision is late. We look at each complaint individually, and on its merits, but we do not investigate late complaints unless there is a good reason the person did not complain earlier. I do not consider that to be the case here. If Mrs X felt the school named was inappropriate, then she could have complained earlier.
11. But even if Mrs X had complained earlier, it is unlikely we would have investigated. The same reason applies for us not investigating now – even though Mrs X says she has only just discovered issues with the consultation process. The fault alleged by Mrs X led to the naming of what she considers to be an inappropriate school in her child’s EHC Plan. That is a matter which is appealable to the SEND Tribunal. It is the mechanism set up by Parliament to challenge such decisions. The SEND Tribunal can say what school should be named in an EHC Plan. We cannot. An appeal could therefore have given Mrs X the outcome she wanted. It was therefore reasonable for Mrs X to use her right of appeal. It is unlikely we would have investigated if Mrs X had complained about the consultation process at the time. We will not investigate now.
12. Even if we were to set aside the above reasons there is no worthwhile outcome we could now achieve. If we found fault with the consultation process, we could not say what school the Council would have named. There will have been several annual reviews since the decision complained about and Mrs X’s child started a new school in September 2024. An investigation would not achieve anything different or a worthwhile outcome.

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Final decision

13. We will not investigate Mrs X’s complaint. The decision at the heart of this case was taken in 2021, it was reasonable for Mrs X to appeal, and there is no worthwhile outcome achievable by an investigation.

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Investigator's decision on behalf of the Ombudsman