Summary: We will not investigate Mr X’s complaint about the Education, Health and Care Plan process. The complaint is late, and Mr X appealed to the First-tier Tribunal (Special Educational Needs and Disability). This places the complaint outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained about the Council’s handling of his request it issue his son with an Education, Health and Care Plan (EHC Plan). Mr X says the Council took too long to deal with his request and wrongly finalised an EHC Plan which was not suitable for his son. Mr X says this meant he had to appeal to the SEND Tribunal incurring legal costs.

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The Ombudsman’s role and powers

2. 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)
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 Tribunal in this decision statement.
5. 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) 

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We will not start an investigation into Mr X’s complaint. The reasons for this are below.
9. Firstly, the Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem – not twelve months of receiving a response to their complaint. Mr X asked the Council to issue his son with an EHC Plan in October 2022. The deadline for the Council to issue an EHC Plan was February 2023. The Council eventually issued a final EHC Plan in October 2023. Mr X’s complaint is therefore late. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so. I do not consider that to be the case here.
10. More importantly, the issues at the heart of this complaint are how the Council dealt with Mr X’s request for an EHC Plan and what it eventually contained. Mr X says the Council wrongly finalised the EHC Plan and its content was inappropriate. Mr X says this left his son without a suitable education and meant he had to appeal to the SEND Tribunal leading to him incurring costs. The decision-making process and the content of the EHC Plan are closely linked.
11. Parents who want to challenge the content of an EHC Plan have a right of appeal to the SEND Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. As explained above, Mr X used his right of appeal.
12. The law is clear that when a parent has appealed to a tribunal, the matter appealed, or anything closely linked, such as the decision-making process, is outside our jurisdiction. This exclusion applies from when the appeal rights were available to when the Tribunal issues its decision. So, as well as being late, Mr X’s complaint is outside our jurisdiction because of his appeal to the SEND Tribunal. We have no discretion in this matter. This exclusion includes any costs Mr X incurred. If Mr X felt the Council had acted unreasonably it was something he could have raised with the Tribunal. Mr X’s complaint is not one we can consider.
13. Mr X is also unhappy with how the Council dealt with his complaint. But it is not a good use of our resources to look at complaint handling as a standalone issue if we are not looking at the issue which led to the original complaint. That is the case here.

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Final decision

14. We will not investigate Mr X’s complaint because it is late, and he has appealed to a tribunal. This means the complaint is outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman