Summary: We will not investigate this complaint about alleged delay by the Council in meeting Ms X’s child’s special educational needs. The complaint is late, and there is no good reason to exercise discretion to investigate these matters now. Even if that were not so, Ms X exercised her right to appeal to the Special Educational Needs and Disability Tribunal. The content of the child’s Education Health and Care Plan, and how the Council assessed the child’s needs in deciding that content and the school placement, are matters that we could not investigate.

The complaint

1. Ms X said there was delay by the Council in assessing and providing suitable education to meet her child’s special educational needs. She said the Council’s assessments were deficient and it named a mainstream school when it was obvious it would not meet her child’s needs.

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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. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.

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How I considered this complaint

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Ms X appealed against the final Education Health and Care (EHC) Plan the Council issued. The final hearing was in March 2023. The complaint relates to what happened before the final hearing. There was no significant delay by the agency used by the Council in completing its complaint process. It was thus at least 18 months after the last of the matters complained of happened before Ms X approached us. I have seen no evidence that Ms X was prevented from contacting us much sooner.
10. Even if that were not the case, the content of the EHC Plan is not something we could consider. The school and provision named were for the SEND Tribunal to decide, and Ms X correctly used her right of appeal. How the Council arrived at that content is closely linked to the decisions it made.

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Final decision

11. We will not investigate Ms X’s complaint because it is late and there is no good reason to exercise discretion to consider the matters complained of.
12. Even if the complaint were not late, the content of the child’s EHC Plan and how the Council arrived at it are matters either directly considered by the SEND Tribunal or closely linked to matters it considered. We could not investigate those matters.

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Investigator's decision on behalf of the Ombudsman