Summary: We will not investigate Ms X’s complaint about the Education, Health, and Care plan process. There are no good reasons the late complaint rule should not apply for the period from December 2022 to June 2023. It is reasonable to expect her to have appealed to the Tribunal a decision in November 2023. And we cannot investigate the Education Health and Care Plan because she has appealed.

The complaint

1. Ms X complained about the Education, Health, and Care Plan (EHC Plan) process for her son.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes limits 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 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 about special educational needs (Local Government Act 1974, section 26(6)(a), as amended). 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 Ms X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Ms X’s child, B, has additional needs. B has an EHC Plan. She says the Council:
• has not met legal timeframes,
• used wrong information causing delay,
• included unknown Council staff in reviews,
• failed to correctly consider school setting against need,
• failed to ensure the current setting is providing for needs set out in the EHC Plan.
9. Ms X says B has missed out on their education and support.

Analysis

10. The Council delayed in assessing and producing B’s EHC Plan between December 2022 and June 2023. We cannot investigate this period as the events are more than 12 months old and there are no good reasons the late complaint rule should not apply.
11. The Council held a review in October 2023 of B’s EHC Plan in line with the statutory guidance to hold under-fives’ reviews every three to six months. The Council issued a notice following that meeting in November 2023 confirming it intended to maintain the EHC Plan. We will not investigate this decision nor the EHC Plan content. It would be reasonable to expect Ms X to have appealed the EHC Plan if she felt it did not meet the needs for transition to Primary School in September 2024.
12. The Council held an EHC Plan annual review in April 2024. It issued an amended EHC Plan in August 2024. The Council delay between the annual review and issuing an EHC Plan is not significant enough to justify our investigation.
13. Ms X has appealed to the Tribunal the EHC Plan. We cannot consider the Council’s assessment process, including reports it did or should have gained. The injustice caused by any faults in that process is the inadequacy of the EHC Plan for which the Tribunal is the remedy process.
14. Ms X says the EHC Plan has not been provided since September 2024. We will not investigate this as it is reasonable to expect Ms X to complain to the Council.

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Final decision

15. We will not investigate Ms X’s complaint because it is reasonable to expect her to use or have used her right of appeal to the Tribunal. And there are no good reasons the late complaint rule should not apply to events before June 2023.

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Investigator's decision on behalf of the Ombudsman