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 name a particular school in his daughter’s Education, Health and Care Plan (EHC Plan). Mr X says the Council’s actions meant his daughter missed a month of school and wants the Council to pay compensation.

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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.

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How I considered this complaint

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

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My assessment

7. We will not start an investigation into Mr X’s complaint. The reasons for this are below.
8. 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. In this case the Council issued final EHC Plans naming the school Mr X was originally unhappy with in February and May 2023. Any concerns Mr X has about how the Council decided the content of those EHC Plans is 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.
9. More importantly, the issue at the heart of this complaint is the school named in the EHC Plan and how the Council decided the content of the EHC Plan. These two issues are directly linked and cannot be separated.
10. 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. Mr X has used his right of appeal.
11. 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. It is not a complaint we can consider.

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Final decision

12. 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