Summary: We will not investigate this complaint about the education provided to Mrs X’s child and the Council’s handling of the Education, Health and Care Plan process. This is because part of the complaint is late, and Mrs X could have complained to the Ombudsman sooner. Mrs X has appealed to the First-tier Tribunal (Special Educational Needs and Disability). This places much of the complaint outside our jurisdiction. The delay by the Council in dealing with the Education, Health and Care Plan did not cause an injustice significant enough to warrant our involvement.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council failed to provide her child (Y) with a suitable education during the 2023/24 academic year. Mrs X also complains about Education, Health and Care Plan (EHC Plan) process for Y. Mrs X says the Council took too long to consider her request it assess Y for an EHC Plan. Mrs X says the Council’s decision to refuse her request was unlawful, leaving Y without support or a suitable education, and forcing Mrs X to appeal to the Tribunal. Mrs X is unhappy with the Council’s conduct during the appeal and says it failed to meet the relevant timescales after the Tribunal upheld her appeal. Mrs X is unhappy with the EHC Plan the Council eventually issued.

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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.
6. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and 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). 
8. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

11. We will not start an investigation into Mrs X’s complaint.
12. The Ombudsman normally expects people to complain to us within twelve months of them first becoming aware of a problem. Mrs X’s complaint about a claimed lack of education during the 2023/24 academic year 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. Mrs X could have complained to the Ombudsman much earlier about this issue and so we will not now investigate.
13. Turning to the EHC Plan issue, parents who are unhappy with a council’s decision not to assess their child for an EHC Plan have a right of appeal to the Tribunal. We expect parents to use that right unless it is unreasonable for them to do so. The Tribunal can order a council to assess a child for an EHC Plan – the Ombudsman cannot.
14. When a parent has used their right of appeal it places the matter appealed outside our jurisdiction. This exclusion applies from when the appeal rights were available to when the Tribunal issued its decision. We are also barred from looking at anything linked to the matter appealed. This includes how the Council reached the decision appealed, or a claimed lack of education linked to the matter put to the Tribunal. We are also barred from looking at the Council’s conduct during the appeal.
15. Mrs X used her right of appeal against the Council’s decision not to assess her child for an EHC Plan. We therefore have no powers to consider this issue or any directly related matters. Mrs X says the Council was wrong to refuse her request for an EHC Plan and this left Y without support or a suitable education during the 2024/25 academic year. But that is a claimed consequence of the matter appealed. It is out of our jurisdiction with no discretion. The fact the appeal was upheld does not mean it is something we can now consider; the law is clear on this point.
16. We can look at delay by the Council in considering Mrs X’s request the Council assess Y for an EHC Plan. But the Council was only one week late in issuing its refusal. This delay did not cause injustice of a scale which warrants us investigating.
17. Once the Tribunal upheld Mrs X’s appeal, the Council had ten weeks to issue a draft EHC Plan, and fourteen weeks to issue a final version. The Council missed both deadlines by just under a month. While frustrating for Mrs X, the injustice from the delay is again not of a level which warrants an investigation by the Ombudsman.
18. Mrs X is unhappy with the EHC Plan the Council has now issued. Mrs X has appealed this to the SEND Tribunal. As above, it is the appropriate body to consider such matters. Like above, Mrs X’s appeal places the EHC Plan outside our jurisdiction with no discretion.

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Final decision

19. We will not investigate Mrs X’s complaint. Part of the complaint is late, and Mrs X appealed to the Tribunal which places much of the complaint outside our jurisdiction. Delay by the Council did not cause injustice significant enough to warrant us investigating.

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Investigator's decision on behalf of the Ombudsman