Summary: We cannot investigate Miss X’s complaint about how the Council handled her child’s Education, Health and Care Plan. Part of the complaint is late, and there are no good reasons why we should consider it. Additionally, we cannot consider any matter connected to a decision that has been appealed to a tribunal. For the part of Miss X’s complaint we can investigate, the Council have already made an offer of a symbolic remedy, and it is unlikely we would achieve any further outcome.

The complaint

1. Miss X complained the Council failed to provide her child, Y, with a suitable, full-time education when they were unable to attend school due to unmet special educational needs. She complained about the Council’s conduct during, and after, appeals to the Tribunal regarding Y’s Education, Health and Care (EHC) Plan. She said the Council’s actions have caused her and her family stress and affected her employment and finances.

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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 courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
5. 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…”.
6. 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.
7. 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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

8. I considered information provided by the complainant.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. In 2021, Y stopped attending school full-time. Miss X then applied for an EHC needs assessment. The Council agreed to assess Y but then refused to issue an EHC plan for them.
11. In 2022, Miss X appealed the Council’s decision not to issue an EHC Plan to the Tribunal. The Council conceded and in July 2023, the Council issued an EHC Plan. Miss X said the school named in the EHC Plan was not suitable for Y. Miss X then appealed the contents of, and the school named in the EHC Plan to the Tribunal.
12. In April 2024, the Tribunal ordered the Council to amend the contents of Y’s EHC Plan and to name a particular school. Y started attending this school in September 2024.
13. Between 2021 and September 2024, whilst both appeals were ongoing, Y did not attend school. Miss X said the Council did not provide her with any support during this time and it did not take action to secure a suitable full-time education for Y.
14. We cannot investigate the Council’s actions before January 2024 because these parts of the complaint are late, and I can see no good reason Miss X did not complain to us sooner.
15. We cannot investigate Miss X’s complaint about the Council’s conduct during the appeal which ended in April 2024. As stated in paragraph five, we cannot consider these matters because they are linked to her appeal to the Tribunal.
16. This means we also cannot investigate Miss X’s complaint the Council did not secure full-time education for Y for the period after January 2024. The courts have confirmed that we cannot look at the consequences of a council’s decision where the decision itself has been, or could be, the subject of an appeal. Miss X said the reason Y could not attend school was because the school named in Y’s EHC Plan was not suitable. Therefore, this matter is not separable from the issues which have been appealed.
17. Finally, we will not investigate Miss X’s complaint the Council failed to contact Y’s new school to start transition work, after the appeal ended in April 2024. This is because the Council has already apologised for its poor communication during its dealings with Miss X over the matters she complained about, and offered her a symbolic financial remedy of £750 to acknowledge the time and trouble caused to her. I am satisfied this is appropriate to remedy any remaining injustice Miss X has suffered by the Council’s actions. Therefore, we will not investigate that aspect, because further investigation by us into this point would likely not achieve anything more.

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Final decision

18. We will not investigate Miss X’s complaint because part of the complaint is late, and we cannot consider any matter connected to a decision that has been appealed to a tribunal. Investigation into the remaining part of Miss X’s complaint is unlikely to achieve any further outcome.

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Investigator's decision on behalf of the Ombudsman