Summary: We will not investigate Miss X’s complaint about how the Council dealt with matters concerning her child’s education. Miss X has used her right of appeal meaning we are unable to investigate some elements. Other elements are either late, not affected by fault or we could not achieve a different outcome if we were to investigate them.

The complaint

1. Miss X complains about how the Council has managed matters concerning her child’s education provision. She says the Council failed to provide suitable education provision, delayed completing its Education Health and Care (EHC) needs assessment and delayed completing an annual review.

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The Ombudsman’s role and powers

2. 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:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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)

5. The First-tier Tribunal (Special Educational Needs and Disability – SEND) 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

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. I will not investigate Miss X’s complaint that the Council delayed completing her child’s EHC needs assessment. This is because the Council responded to a complaint from Miss X about this in 2023 and it is therefore late. I see no good reason why Miss X could not have complained to us sooner.
9. I will not investigate Miss X’s complaint that the Council delayed completing an annual review of her child’s EHC Plan. This is because the final amended EHC Plan was issued prior to the deadline for children transitioning to post-16 education and therefore it is unlikely that we would find fault causing Miss X or her child a significant injustice.
10. The Council issued an amended final EHC Plan in March 2024 but did not name an education placement. I cannot investigate this decision because Miss X appealed it to the SEND Tribunal. I also cannot investigate the provision in place from when the final EHC Plan was issued. This is because it is not separable from the appeal itself.
11. I can consider the provision in place prior to the final EHC Plan being issued. The Council accepted that suitable full-time provision wasn’t in place from November 2023 and offered a payment to remedy the injustice this caused. The payment is in line with our guidance and therefore investigation into this point would not lead to a different outcome. For this reason, I will not investigate this element of Miss X’s complaint.

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Final decision

12. We will not investigate Miss X’s complaint because she has used her right of appeal meaning we are unable to investigate some elements. Other elements are either late, not affected by fault or we could not achieve a different outcome if we were to investigate them.

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Investigator's decision on behalf of the Ombudsman