Summary: We will not investigate Mrs X’s complaint that the Council has failed to properly support her son, who has special educational needs. This is because the injustice she claims stems from the Council’s initial decision not to issue an Education Health and Care Plan and its later decision that he should continue to attend a mainstream school. These decisions carried a right of appeal which it was reasonable for Mrs X to use.

The complaint

1. The complainant, Mrs X, complains the Council failed to put in place suitable educational provision for her son (Y), who has been out of school since January 2023. She says that as a result she has had to fund his education privately through tuition at home. The Council has now issued Y an Education Health and Care (EHC) Plan but Mrs X says the provision it has agreed, which is to take place at a mainstream school, is unsuitable. She wants the Council to agree to a package of education otherwise than at school (EOTAS) and for it to reimburse the cost of the private tuition she commissioned for Y.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’.
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. We may decide to investigate if we consider it would be unreasonable to expect the person to use this right but cannot investigate if they have already used it. (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 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)

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How I considered this complaint

7. I considered information provided by Mrs X and the Ombudsman’s Assessment Code.

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My assessment

8. The injustice Mrs X claims relates to the period from January 2023, when Y stopped attending his mainstream school placement. Mrs X complained to us about the Council’s actions in September 2024 so any complaint about the Council’s actions before September 2023 is late. I have seen nothing to suggest Mrs X could not have complained to us sooner and I have therefore not exercised my discretion to investigate the impact of the Council’s actions, whether fault or not, between January and September 2023.
9. The Council declined to issue Y an EHC Plan and informed Mrs X of its decision on 5 September 2023. The decision not to issue a Plan carried a right of appeal and Mrs X began the process to appeal by applying for mediation. As a result of the mediation the Council reversed its decision and agreed to issue a Plan, which it did just over a month later.
10. Mrs X disagreed with the final plan because it did not include EOTAS, as the Council felt a mainstream school was better placed to meet Y’s needs. Mrs X registered an appeal against the content of the Plan and the Council confirms it has now agreed to a package of EOTAS and to reimburse Mrs X for the cost of tutoring since January 2024. But Mrs X does not believe this goes far enough; she wants the Council to reimburse her costs from January 2023 and to put in place more support for Y.
11. As set out at Paragraph 8, we will not look at the period between January and September 2023 because the complaint is late and Mrs X could have come to us sooner.
12. We also cannot consider any complaint about the impact of Y being out of school from September 2023 until December 2023 or provide a remedy for this. This is because the injustice she claims was a consequence of the Council’s decision not to issue Y an EHC Plan. The exclusion set out at Paragraph 4 therefore applies.
13. The period after December 2023 is caught by the same exclusion, as Y’s non-attendance at school was the direct result of Mrs X’s disagreement with the contents of the final EHC Plan and Mrs X used her right of appeal to challenge this.
14. Mrs X also has concerns about whether the Council has done enough to support Y on an ongoing basis but this is a new issue which is not covered by her original complaint to the Council. We cannot therefore consider it now. If Mrs X wishes to raise the matter she would need to make a new complaint to the Council. She can then refer it to us to consider, once the Council’s complaints process is complete.

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Final decision

15. We will not investigate this complaint. This is because the injustice Mrs X claims is the result of the Council’s decisions as part of the EHC process. These decisions carried a right of appeal which it would have been reasonable for Mrs X to use and we cannot therefore investigate or provide a remedy for the impact of the decisions on Mrs X and Y.

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Investigator's decision on behalf of the Ombudsman