Summary: We will not investigate Mrs X’s complaint about the Council's handling of her child’s Education, Health and Care Plan. Some of the complaint is late but there is also not enough evidence of fault by the Council. Mrs X’s appeals to the Tribunal places much of the complaint outside our jurisdiction with no discretion. We will not look at concerns about complaint handling in isolation.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the Council’s handling of her child’s Education, Health and Care Plan (EHC Plan). Mrs X’s complaint includes the time taken to issue EHC Plans, the content of plans, including the school named, and the Council’s decision-making processes. Mrs X says the Council ignored reports and failed to properly engage with the Tribunal. Mrs X is unhappy with the Council’s handling of her complaint and wants it to reimburse costs of £60,000.

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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 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.
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.
7. 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)  
8. 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) 

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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. Mrs X first asked the Council to assess her child for an EHC Plan in November 2022. The Council refused in December 2022. This part of Mrs X’s complaint is late. We expect people to complain to us within 12 months of a parent becoming aware of a problem. We look at each complaint on its merits, but there is no reason Mrs X could not have complained to us sooner. I have also not seen any evidence of delay by the Council we would consider fault.
13. Even if Mrs X had complained to us earlier, we would not investigate. That is because parents who want to challenge a council’s decision not to assess their child for an EHC Plan have a right to appeal to the Tribunal. Once a parent has used that right, we are barred from looking at the matter appealed or anything closely linked – such as the decision-making process. Mrs X used her right of appeal. This places her complaint about the Council refusing to assess her child outside our jurisdiction with no discretion. This applies from when the appeal rights were available until the appeal was decided.
14. The Council then agreed to assess Mrs X’s child for an EHC Plan after she had appealed. In July 2023, the Council decided not to issue an EHC Plan. Again, this point is late, but more importantly, the Council’s decision carried a right of appeal to the Tribunal - which Mrs X used. Again, this places the matter outside our jurisdiction. This includes the Council’s conduct during the appeal process.
15. In May 2024, the appeal was settled and the Council agreed to issue an EHC Plan. The Council did this in line with the timescales set out in legislation. Mrs X was unhappy with the school named in the EHC Plan and how the Council decided this – including how it considered reports she provided. These are not matters we can consider because the matter again went to appeal. This was settled in May 2025.
16. Mrs X wants the Council to pay back the legal costs she incurred. That is not something we can consider for the reasons set out in paragraph 8. In summary, the Tribunal can avoid costs. That means we cannot.
17. Mrs X is also unhappy with the Council’s handling of her complaint. But it is not a good use of our resources to look at complaint handling in isolation if we are not going to look at the matter which led to the original complaint. That applies here.

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Final decision

18. We will not investigate Mrs X’s complaint because some of it is late and there is not enough evidence of fault. Mrs X has also appealed to the Tribunal which places most remaining matters outside our jurisdiction. We will not look at complaint handling in isolation.

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Investigator's decision on behalf of the Ombudsman