Summary: We have discontinued our investigation. Part of Mrs X’s complaint about how the Council decided her son’s special educational needs support is outside our jurisdiction, either because it is too old or because it was a matter for the SEND Tribunal instead. The rest of Mrs X’s complaint is premature, and the Council must be given a reasonable opportunity to fully respond before we would have the power to investigate the complaint.

The complaint

1. Mrs X complains that, following a review of her son’s (Y’s) special educational needs support in November 2023, the Council failed to follow correct procedure. She says:
• No amendments were made to the support, which meant it was out of date.
• The Council failed to identify a school for Y, which meant she did not know where he was supposed to go. She sent him to an independent school, and, because of the Council’s failure to make decisions about his support, has had to pay his school fees herself.
• The Council said she had made her own arrangements for Y, and therefore it was not responsible for delivering his support. But she only had to do this because of the Council’s failings.
• Although the Council said mainstream education was suitable for Y, she has evidence that no mainstream schools could meet his needs. And this is further demonstrated by the Council subsequently deciding he needs to go to the independent school.
• Following a further review of Y’s support in November 2024, the Council made amendments to his support, but it caused delays in doing so. During the period of delay Mrs X had to continue paying his school fees.
• There are ongoing issues with the delivery of Y’s support.
2. Mrs X says she has been caused financial injustice. She wants the Council to reimburse her for Y’s school fees, which, she believes, the Council should have been paying all along.

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The Ombudsman’s role and powers

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, section 26B, as amended)
4. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), 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 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.

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

9. Mrs X complained to us in April 2025. This means any complaints she makes about events prior to April 2024 are, by the definition in the Local Government Act, late.
10. Even taking into account that it was understandable for Mrs X to allow the Council some time to amend Y’s special educational needs support – which was set out in his education, health and care (EHC) plan – following his review in 2023, it was 17 months before she complained to us.
11. It would have been reasonable to expect Mrs X to complain earlier if she had wanted us to investigate her complaint. Consequently, I do not consider there to be good reasons to disregard our usual time limit. All matters from before April 2024 are too old.
12. In April 2024, Y was attending an independent school. Mrs X believes the Council should have been paying his school fees. But his EHC plan from the time – while not naming a specific placement –said he should attend a mainstream school. So I would not have grounds to recommend that Mrs X be reimbursed for this period.
13. If Mrs X had been dissatisfied with the type of school named in Y’s EHC plan (or with the fact that no specific school was named), she could have appealed to the Tribunal. I cannot consider such a complaint, because my role cannot overlap that of the Tribunal.
14. The Council sent its final complaint response to Mrs X in February 2025, addressing matters from before that point. The response could not address the subsequent delay to Y’s amended EHC plan (which was issued in May) or the alleged issues with the delivery of Y’s support (which have arisen since the Council began funding Y’s placement in September).
15. The Local Government Act says:

Before proceeding to investigate a matter, [the Ombudsman] shall satisfy himself that the matter has been brought, by or on behalf of the person affected, to the notice of the authority to which it relates and that that authority has been afforded a reasonable opportunity to investigate the matter and to respond.

16. Because of the date of the Council’s final complaint response, I am not satisfied that the Council has been given a reasonable opportunity to respond to Mrs X’s complaints about the delayed EHC plan or the incomplete special educational needs support. Although Mrs X may well feel that she is due some kind of remedy from the Council for what she perceives as its failings, the Council must first be given the opportunity to consider whether such a remedy would be justified.
17. Until Mrs X has exhausted the Council’s complaints procedure in relation to these newer matters, we have no power to investigate them.

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Decision

18. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman