Summary: We cannot investigate Mrs X’s complaint that the Council failed to arrange suitable education for her son. This is because part of the complaint is late and the remaining issues are too closely linked to the content of the EHC plan, which Mrs X has used her right of appeal to challenge at the Tribunal.

The complaint

1. Mrs X complains the Council did not arrange a suitable education for her son (Y), who has an Education Health and Care (EHC) Plan, from April 2023. Mrs X says this caused her family emotional distress and financial strain.

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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. 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.

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How I considered this complaint

6. I considered information provided by Mrs X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mrs X says her son has not attended school full time since April 2023. She says he has emotionally based school avoidance (EBSA) which prevents him from attending school and has provided evidence from Y’s GP in support of this claim.
9. Mrs X says she asked the school to provide alternative provision for her son in April 2023. The Council’s Inclusion and Attendance team worked with the school and Mrs X to support Y but Mrs X believes it should have arranged alternative provision away from the school setting.
10. The Council issued Y an EHC Plan in July 2024 but because Y does not attend school he does not receive the special educational needs (SEN) provision set out in the Plan. Mrs X wants the Council to be held accountable for this and for it to compensate her and Y for the loss of education and SEN provision Y is entitled to.
11. While Y’s EHC Plan sets out his SEN and the provision required to address these needs, it also names a setting it considers suitable to meet his educational and special educational needs. The setting named is the school at which Y is currently on the roll and the Council considers this remains suitable and accessible for Y. Mrs X has appealed against the setting named in the EHC Plan and asked the Council for a package of education otherwise than at school (EOTAS) for her son. The Tribunal will consider whether the school named is suitable to meet Y’s needs and we cannot investigate any issues which overlap with this point.
12. I cannot therefore investigate whether the Council is at fault for not delivering Y’s educational and special educational needs provision or for declining to put in place alternative provision. The school remains available to Y and the reasons he is not accessing it are too closely linked to Mrs X’s appeal to the Tribunal against the decision to name the school.
13. It is however unlikely we would find fault by the Council in relation to its refusal to provide alternative provision for Y, even if we were able to investigate. This is because it has considered Mrs X’s claim that Y is unable to attend because of his EBSA but does not accept there is sufficient evidence to prove this. This is a decision the Council was entitled to reach and I have seen no basis for us to question it.
14. I will not investigate Mrs X’s complaint about her child’s educational provision prior to July 2024 because this part of the complaint is late. I have considered whether we should exercise discretion to consider the matter but I have seen no good reasons why Mrs X could not have complained sooner.

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Final decision

15. We cannot investigate Mrs X’s complaint. This is because part of the complaint is late and the remaining issues are too closely linked to the content of the EHC plan. Mrs X has used her right of appeal and this removes our jurisdiction to investigate.

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Investigator's decision on behalf of the Ombudsman