Summary: Mrs X complained about the Council’s handling of her child, Y’s education since 2022 when they stopped attending school. She complained about a lack of alternative provision, delays completing Y’s Education, Health and Care (EHC) needs assessment and the decision to name a mainstream school in the final EHC Plan. I ended this investigation because part of the complaint is late and the other part falls outside of our jurisdiction because Mrs X appealed to the SEND tribunal.

The complaint

1. Mrs X complained about the Council’s handling of her child, Y’s education since 2022. Specifically she complained:
1. The Council failed to provide alternative provision for Y between July 2022 and January 2023 when they stopped attending school.
2. Delayed completing Y’s Education, Health and Care (EHC) needs assessment and subsequently delayed issuing the final EHC Plan.
3. Failed to provide the specialist provision in Y’s EHC Plan between January and June 2024 when it named a mainstream school Y which they did not attend as it could not meet Y’s needs.
2. Mrs X says the matter has caused the family considerable stress and uncertainty and has impacted on Y’s education and development.

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The Ombudsman’s role and powers

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. 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)

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How I considered this complaint

5. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

EHC Plans and EHC needs assessments

7. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
8. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply.

SEND tribunal

9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
10. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
11. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207.
12. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
13. 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).
14. We cannot trespass in any way on the jurisdiction of the tribunal (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

My findings

15. Mrs X complained about the points in paragraph one to the Council in September 2024 and then she complained to us in November 2024.

Complaints a and b

16. I have not investigated Mrs X’s complaint about a lack of alternative provision between September 2022 and January 2023 because it is late and she knew then about the matter she is now complaining to us about. It was reasonable for Mrs X to complain about this period much earlier and there are no good reasons for her not to have complained to us sooner.
17. Likewise, Mrs X’s complaint about a delayed EHC needs assessment is also late. The Council agreed to carry out the needs assessment for Y in February 2023 which mean the final EHC Plan should have been issued by the end of May 2023. Mrs X was aware at this point that the Council had missed the deadline. I have not used my discretion to investigate these delays as it was reasonable for her to have complained to us about the matter much earlier.

Complaint c

18. The final element of Mrs X’s complaint is about a lack of specialist provision for Y between January and June 2024. The Council issued Y’s final EHC Plan in January 2024 and named their current mainstream school, School 1 as the placement. Prior to January 2024 Y had not attended School 1 and had received alternative provision by way of tuition and attended a therapeutic provision funded privately by Mrs X.
19. Mrs X says School 1 could not meet Y’s needs and she required a specialist placement. The naming of School 1 in Y’s EHC Plan came with a right of appeal to the SEND tribunal which Mrs X used in March 2024. In June 2024 the Council amended Y’s EHC Plan by consent, naming a specialist placement which Y began attending shortly after.
20. The core of Mrs X’s appeal to the tribunal was about the Council’s decision to name School 1, a mainstream school, in Y’s EHC Plan, as she felt Y’s needs could only be met in a special school, the consequence of which meant Y did not attend School 1. Therefore, I cannot investigate the period January to June 2024 as it would result in me looking at the Council’s decision and reasoning to name School 1 in Y’s EHC Plan. Investigating would therefore trespass on the tribunal’s jurisdiction. In line with the reasons explained in paragraphs 11-14 this period falls outside of our jurisdiction and is therefore not something I can investigate.

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Decision

21. I ended this investigation because part of the complaint is late and the rest of it falls outside of our jurisdiction.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman