Summary: We will not investigate this complaint about an Education Health and Care Plan. It would be reasonable for Mr X to use his right to appeal to the Tribunal.

The complaint

1. Mr X complains the Council did not choose a suitable education setting for his child. Mr X also complains the council Delayed in reviewing his child’s Education, Health and Care (EHC) Plan and communicated poorly. Mr X says the issues have gone on for the last few years.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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.
5. 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)

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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. Mr X’s child, Y has an EHC Plan. The EHC Plan sets out Y’s SEN provision and names a mainstream school for Y to attend.
9. I will not investigate the Council’s actions going back three years. This is because I see no reason why Mr X could not have complained about these matters sooner. I have therefore only considered Mr X’s complaint about the Council’s actions in relation to a final EHC Plan issued in September 2024.
10. Mr X complains the Council said they would find Y a specialist setting but have not done this.
11. Mr X has the right to appeal to the Tribunal about the school or other setting named in Section I of Y’s EHC Plan. Where appeal rights exist, the Ombudsman expects them to be used. It would be reasonable for Mr X to use his right to appeal.
12. Mr X also complains of delays in keeping Y’s EHC Plan up to date.
13. The Council are required to review EHC Plans annually. They issued Y’s final EHC Plan one year and four days after the previous EHC Plan. This was four days after the statutory deadline.
14. The Council have apologised to Mr X and offered him a £300 remedy. This is a suitable remedy in line with our guidance.
15. Mr X also complains of poor communication and delays in the complaint process.
16. We will also not investigate how the Council dealt with Mr X’s complaint as it is not a good use of public resources to investigate complaints about complaint handling when we are not looking at the substantive issue.

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Final decision

17. We will not investigate Mr X’s complaint. It would be reasonable for him to use his right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman