Summary: We cannot investigate this complaint about the Council’s decisions relating to an Education, Health and Care Plan for Mrs X’s child. This is because Mrs X appealed those decisions to the First-tier Tribunal and the law does not allow us to investigate. Additionally, we will not investigate earlier delays because this is a late complaint. Finally, we will not investigate a complaint about delays in subsequently issuing a plan, because it is unlikely we would find fault.

The complaint

1. Mrs X complained about the Councils handling of her request to issue her child (Y) an Education, Health and Care (EHC) Plan. Mrs X complained about delays and that the final EHC Plan was not suitable.
2. Mrs X complained the Council have caused her family emotional and financial stress.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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)
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. 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) 
8. 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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

9. I considered information provided by the complainant and the Council.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. Mrs X complained about the Council’s decisions relating to an EHC Plan, including a decision not to assess Y, and then a subsequent decision not to issue Y an EHC Plan. Mrs X used her right of appeal to the Tribunal about these decisions.
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. We have no discretion in this matter. This exclusion includes any costs Mrs X incurred. If Mrs X felt the Council had acted unreasonably it was something she could have raised with the Tribunal.
13. Mrs X also complained about the Council delays in giving her its decision not to assess Y, in 2023. We expect people to complain to us within 12 months of becoming aware of a problem and therefore this element of the complaint is late. We do not exercise discretion to accept a late complaint unless there are good reasons to do so.
14. Mrs X also complained about the Council’s delay in issuing Y an EHC Plan after the Tribunal ruling. The Council must issue a draft EHC Plan within 5 weeks of the order being made and send a finalised EHC Plan to the child’s parent within 11 weeks.
15. The Council issued the EHC Plan within 11 weeks. I understand Mrs X will be unhappy the Council then subsequently amended that plan, in line with her requests, but given it issued a final EHC Plan in time and gave her an appeal right, it is unlikely we would find fault in its actions.

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Final decision

16. We will not investigate Mrs X’s complaint because parts of it are late and there is no good reason she did not come to us sooner. Additionally, Mrs X has appealed to a tribunal about some parts, and it is unlikely we would find fault in the parts remaining.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman