Summary: We will not investigate this complaint about the Education, Health and Care Plan process and the support provided to Miss X’s son. The complaint is late and is also outside our jurisdiction as it relates to matters which were or could have been appealed to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, whom I shall refer to as Miss X, complained about issues affecting her son’s education between 2021 and 2024. Miss X says there were issues with the drafting of his Education, Health and Care Plan (EHC Plan). These include flawed or missed assessments and unsuitable placements leaving her son without a suitable education. Miss X says she was forced to appeal to the Tribunal with the Council eventually conceding. Miss X says she incurred avoidable costs.

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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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. The law says we cannot normally investigate a complaint when someone has, or had, a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it was / would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), 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.

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How I considered this complaint

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

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My assessment

9. We will not start an investigation into Miss X’s complaint for the following reasons.
10. Firstly, the Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. Miss X’s complaint dates to 2021 and is therefore 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. It would have been reasonable for Miss X to approach the Ombudsman sooner and so we will not exercise our discretion to investigate.
11. But even if Miss X’s complaint was not late, it is unlikely there are any issues we could investigate. Parents who are unhappy with the EHC Plan process have a right of appeal to the SEND Tribunal. We expect parents to use that right unless it is unreasonable for them to do so. It is the mechanism set up by Parliament for parents to challenge decisions about the EHC Plan process.
12. Miss X says there were problems with the EHC Plan process, including flawed reports, missed assessments, and unsuitable placements. The injustice from these issues will have been an EHC Plan which did not reflect her child’s needs. That is a matter which is appealable.
13. Miss X used her right of appeal to the Tribunal. The courts have established that if someone has appealed to the Tribunal, 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).
14. Anything to do with the content of the EHC Plan which was appealed to the Tribunal is therefore outside our jurisdiction. We have no discretion to consider such matters. This also applies to any lack of education claimed by Miss X which was linked to the special educational provision or the educational placement in the EHC Plan. The exclusion applies from when the appeal rights were available to when the Tribunal issued its decision - or the appeal was withdrawn or conceded. The same restrictions apply where someone had a right of appeal to the Tribunal, and it was reasonable for them to have used that right.
15. We also cannot investigate the Council’s conduct during the appeal. This includes any evidence given or provided by the Council and its decision to concede the appeal. 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) 
16. Miss X’s complaint is therefore late and is also outside our jurisdiction because of her appeal to the Tribunal and the rights available to her.

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Final decision

17. We will not investigate Miss X’s complaint because it is outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman