Summary: We will not investigate this complaint about the Education, Health and Care Plan process for Mr X’s child. There is not enough evidence of fault by the Council, and it was reasonable for Mr X to appeal to the First Tier Tribunal (Special Educational Needs and Disability). Mr X can submit a late appeal to the Tribunal if he thinks the Council did not properly advise him of his appeal rights.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained the Council’s actions denied him a right of appeal against its decision not to assess his child for an Education, Health and Care Plan (EHC Plan). Mr X wants to be able to proceed with his appeal to the Tribunal.

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The Ombudsman’s role and powers

2. 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
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. 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 would be, or was 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.

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X asked the Council to assess his child for an EHC Plan. The Council refused his request on 10 April and advised him of his right of appeal. It also suggested a meeting with his child’s school to explain its decision. The Council again sent Mr X details of the appeals process on 01 May. Mr X said he wanted to “proceed with both paths” – which I read to mean a meeting with the school and the appeal.
8. Mr X says when the meeting was arranged the two-month deadline for appealing had passed. Mr X wants to be able to continue with his appeal.
9. We will not start an investigation into Mr X’s complaint.
10. Firstly, there is not enough evidence of fault by the Council. It advised Mr X of his right of appeal to the Tribunal when it first refused his request. While I note Mr X says he was then waiting for the meeting with his child’s school, it was for Mr X to lodge an appeal. We could not say it was due to fault by the Council he did not do this by the deadline. The Council met its duty by explaining its decision not to assess and advising Mr X of the appeals process.
11. Secondly, the Tribunal has discretion to extend the time limits for lodging an appeal where councils did not provide the relevant information about the appeals process. So, if Mr X feels an appeal would now be out of time because the Council did not provide the necessary information, he can submit a late appeal. Mr X should say why he thinks the Tribunal should allow an extension of the deadline. The Tribunal could then decide to allow his appeal. That is not a decision we can take and so an investigation is not appropriate.

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Final decision

12. We will not investigate Mr X’s complaint because there is not enough evidence of fault by the Council. It was reasonable for Mr X to appeal, and he can now send a late request to the Tribunal.

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Investigator's decision on behalf of the Ombudsman