Summary: We will not investigate this complaint about delay by the Council issuing an Education Health and Care Plan and the delivery of SEN provision and alternative education. Investigation by us would not be likely to lead to a worthwhile outcome. The Council has already offered a suitable remedy for the injustice caused by the late issue of the Plan for Mrs X’s child. The child’s inability to engage with the alternative provision offered in the autumn of 2023 means we could not say the Council should have done more. And a legal judgement prevents us considering what educational provision was offered for the child after November 2023.

The complaint

1. Mrs X said the Council delayed issuing a final Education Health and Care (EHC) Plan for her child in 2023. She said it also failed to make the SEN provision her child needed, or to meet its duty to make alternative educational provision.

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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…”.
7. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin)).
8. 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 not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

10. I considered information provided by the complainant and the Council.
11. I considered the Ombudsman’s Assessment Code.
12. For the purpose of clarity, I have dealt with the matters complained of chronologically, as the position regarding our legal powers varies according to events.

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My assessment

13. Mrs X’s child experienced growing difficulties attending school from early in the secondary phase. The complaint as I understand it does not include the school years before September 2023, but we would not exercise discretion to investigate that period as any complaint about them would be late, and there would be no good reason to do so.
14. Mrs X asked the Council to assess her child’s potential SEN in November 2022. Mrs X and the Council have broadly agreed it took about seven months or 32 weeks too long to issue a final EHC Plan for the child. They have also both confirmed the Council apologised for the delay and offered a symbolic financial remedy that is in line with our guidance. There is thus no reason for us to investigate this matter as the Council has already offered a suitable remedy for the delay.
15. Mrs X asked the Council in the summer of 2023 to make alternative educational provision for her child. We have legal authority to consider the period between the start of the school year in September 2023 and the date the Council issued the final EHC Plan in November 2023. During this time the Council had a duty to offer alternative education provision. However, the duty is only full-time where the child can cope with that. In this case the child had been unable to engage with school due to anxiety. The Council’s initial offer in September 2023, which the child could not engage with, was of a tutor to help with emotional literacy. The complaint correspondence stated the child had experienced long-term absence from education and had presenting anxiety. This was stated to include being unable to engage with the tutor. Given that, we could not say that an immediate offer of increased hours of educational tuition at home would have been successful. This view is supported by the report that the child was also unable to engage more than 25% with an academic tutor provided two days per week from October 2023. Investigation by us would be unlikely to find the Council should have offered more education between September and November 2023, or that the child could have taken it up fully.
16. A legal ruling prevents us investigating the educational provision offered for the child after November 2023. This is because the Council issued a final EHC Plan that Mrs X could and did appeal against to the SEND Tribunal. We cannot the Council should have offered other provision than that which it named in the EHC Plan.

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Final decision

17. We will not investigate Mrs X’s complaint because this would be unlikely to lead to any worthwhile outcome given:

• Any matters concerning alternative educational provision before summer 2023 would be late, and there would be no good reason to exercise discretion to consider them now;
• The Council has already offered a suitable remedy for the injustice caused by delay in the EHC assessment process;
• There is not enough evidence of fault or injustice in the Council’s offers of education between September and November 2023; and
• We cannot investigate what educational provision the Council offered after it issued the final EHC Plan in November 2023.

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Investigator's decision on behalf of the Ombudsman