Summary: We cannot investigate this complaint about the Council’s actions in deciding provision for Ms X’s child’s special educational needs. Ms X used her right of appeal to a tribunal about the provision specified by the Council, and the matters complained of are closely related to that.

The complaint

1. Ms X says the Council failed to follow protocol and law between 2022 and 2024 relating to the special educational needs provision required for her child. She said all matters could have been dealt with at the 2023 review of the child’s Education Health and Care (EHC) Plan and it should not have been necessary for her to appeal to the SEN Tribunal.

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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 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)
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. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
6. 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)
7. 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 fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or

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

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How I considered this complaint

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

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My assessment

10. Ms X’s complaint relates to the actions of the Council between 2022 and 2024 in deciding what special educational (SEN) provision should be made for her child. She used her right of appeal to the Tribunal in 2024. We cannot consider what provision the Council should have specified, or its conduct in reaching its decisions.
11. Even if that were not so, and not including the extra time taken by the Council to deal with Ms X’s complaint, most of it would still be late, and there would be no good reason to exercise discretion to consider the matters complained of.
12. The only part of the complaint that is separable from the Tribunal decision, and also not late, concerns errors in the final EHC Plan issued by the Council after the Tribunal. However, these were accepted as typing errors to be corrected. The likely fault involved in this matter alone is not enough to warrant investigation.
13. While the Council took seven months to deal with Ms X’s complaint, we cannot investigate this as most of the matters in that complaint lie outside our legal powers. It follows that it would not be a good use of resources to investigate how the Council dealt with the complaint about the typing errors in the final EHC Plan it issued after the Tribunal.

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Final decision

14. We will not investigate Ms X’s complaint because:

• We cannot investigate matters closely related to those decided by the Tribunal, or the Council’s complaint handling concerning them; and
• The remaining matter after the Tribunal is unlikely to involve enough fault to warrant our involvement.

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Investigator's decision on behalf of the Ombudsman