Summary: We will not investigate this complaint about the Council’s assessment of and provision for Miss X’s child’s special educational needs between February 2022 and the date when the Special Educational Needs and Disability Tribunal determined the provision. Some of matters complained of are closely linked to matters that were for the Tribunal to decide and we cannot comment on them. Others concern matters we are prevented by a legal ruling from considering. And the remaining matters are late, with there being no good reason for us to exercise discretion to investigate them now.

The complaint

1. Miss X said there was a catalogue of failures by the Council concerning her child’s special educational needs (SEN) after February 2022. She said it failed to give her proper advice, to consider reports she provided from a previous area, to carry out a proper assessment of her child’s SEN, delayed issuing an Education Health and Care (EHC) Plan, and failed to communicate with her in a timely manner.

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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 a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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.
5. 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)
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
7. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
8. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10)
9. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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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.

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My assessment

12. Matters relating to allegedly poor advice provided to Miss X in 2022 are directly linked to the issue of suitable provision for her child’s SEN. The same holds true for the assessments the Council carried out or declined to accept before it issued a final EHC Plan in November 2022. They are thus matters related to the question of suitable provision that was for the SEND Tribunal to decide. They are also late matters. I deal with late matters later in this statement. The issue of poor communication before and/or during the time waiting for the SEND Tribunal is also affected in the same way, though the issue of lateness only applies before November 2022. Regardless of the Council’s absolute duty to make SEN provision, we can only investigate that where it is unconnected to the matter before the SEND Tribunal. That would require the child to be attending the setting named in the disputed EHC Plan during the waiting period for the SEND Tribunal, and for the provision named in the final EHC Plan being alleged not to have been made there. That does not apply in this case.
13. Alleged delay by the Council in issuing the EHC Plan in 2022 are not matters the SEND Tribunal could consider, and we may investigate them if there is no other impediment. The same applies to any complaint about the provision of alternative educational provision for a child before a council issues a final EHC Plan. However, matters occurring more than 12 months before a complainant approaches us are late unless they have been unaware of them until more recently. The relevant date is not the date the Council completes its complaints process. We may nonetheless decide to investigate late matters if we think there is a good reason that prevented a person from approaching us within 12 months.
14. Mrs X was aware of the time taken by the Council to issue the EHC Plan after she asked it to. She was also aware of the educational provision made or not made by the Council in 2022, and other matters I have already dealt with. The complaint about them is thus late, being brought to us almost two years after November 2022. I note Mrs X’s representative told the Council it had refused in March 2024 to consider her complaint of January 2024 while SEND Tribunal proceedings were ongoing. However, Mrs X’s complaint to the Council was itself more than 12 months after the issue of alleged delay ended, and any delay outside the normal 20-week period for issuing an EHC Plan would have been clear by July or August 2022. I therefore find she could have complained to us about matters of delay in the EHC process within 12 months. The same reasoning would apply to any complaint about alleged failed alternative educational provision, which would have been clear by mid-2022.
15. In summary, none of the matters complained of is both separable from matters that were for the SEND Tribunal to decide, and also, where they are late, a matter in respect of which there would be a good reason to use discretion to investigate.

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Final decision

16. We will not investigate Mrs X’s complaint because:

• Parts of it are closely linked to matters that were for the SEND Tribunal to decide; and
• Those parts that are separable from those for the SEND Tribunal are late, and there is no good reason to exercise discretion to investigate them now.

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Investigator's decision on behalf of the Ombudsman