Summary: We will not investigate this complaint that fault on the Council’s part denied the complainant’s son access to educational and special educational provision. Part of her complaint is late, and her appeal to the First-tier Tribunal (Special Educational Needs and Disability) places the remaining part outside our jurisdiction.

The complaint

1. The complainant, Miss X, complains that the Council was at fault in:

• failing to issue her son’s Education Health and Care (EHC) plan within the statutory timescale;
• naming a school in the EHC plan which could not meet her son’s needs;
• withholding relevant information from her; and
• advising her to educate her son at home.

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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 provider 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) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
6. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

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How I considered this complaint

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

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My assessment

10. Miss X’s son has special educational needs and an EHC plan. Her son has been home-schooled since January 2023. Miss X says it was not her choice to educate him at home. She says the Council’s officer wrongly advised her that this was the best option for him. She complains that, as a result, her son has missed out on educational provision.
11. The Council issued an EHC plan for Miss X’s son in March 2024. Miss X complains, and the Council accepts, that the EHC plan was not issued within the statutory timescale. She further complains that the EHC plan named a school which was inappropriate for her son. She says she was compelled to use her right to appeal to the Tribunal, further delaying her son’s access to educational and special educational provision.
12. The Ombudsman will not investigate Miss X’s complaint. Her complaint about matters up to and including the issue of the EHC plan in March 2024 is late. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. This restriction applies to matters before May 2024 and there are no good reasons for us to consider them now.
13. The law prevents us from investigating matters since the EHC plan was issued. This is because Miss X used her right to appeal to the Tribunal. The courts have decided that, where appeal rights have been used, the Ombudsman cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal.
14. That being the case, we cannot take a view on whether the school named in the EHC plan was appropriate for Miss X’s son. We therefore have no jurisdiction to consider whether fault on the Council’s part denied Miss X’s son provision from the point at which the EHC plan was issued until the point at which the Tribunal process ended. There is no discretion available to us.

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Final decision

15. We will not investigate Miss X’s complaint. Part of it is late, and there are no good reasons for us to investigate now, and she has used her right to appeal to the Tribunal, placing the remaining part outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman