Summary: We will not investigate this complaint about the Council’s handling of an Education, Health and Care Plan. The complaint is late and there is no good reason for us to now investigate. An appeal to the Tribunal places the complaint outside our jurisdiction. Even if we could investigate, there is no worthwhile outcome we could achieve.

The complaint

1. The complainant, whom I shall refer to as Ms X, complained about the Council’s handling of her request it assess her child for an Education, Health and Care Plan (EHC Plan). Ms X says the Council did not clearly state it had refused her request and Ms X questions the basis of the Council’s decision.

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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:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal; or
• there is no worthwhile outcome achievable by our investigation.

5. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. The law says we cannot normally investigate a complaint when someone has 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 unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. 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

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

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My assessment

11. We will not start an investigation into Ms X’s complaint.
12. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. In this case, Ms X applied for an EHC Plan in February 2024. The Council refused her request in March 2024. Ms X says she did not realise the Council had reached this decision until May 2024 – although I note the decision letter was sent in March. Ms X complained to us in August 2025.
13. Ms X’s complaint 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. Ms X could have complained much earlier and so we will not investigate.
14. Even if we were to set aside the time issue, an investigation would not be appropriate. Ms X knew by May 2024 at the latest the Council had refused her request and that triggered a right of appeal to the Tribunal. It is the mechanism set up by Parliament to challenge such decisions. We expect parents to use that right unless it was unreasonable to do so. The Tribunal can change a council’s decision – we cannot. In this case it was reasonable for Ms X to appeal in 2024 and so our further involvement is not appropriate.
15. Ms X has now asked the Tribunal to consider a late appeal. Where a parent has used their right of appeal, it places the matter appealed and anything closely linked outside our jurisdiction. This includes how the Council reached its decision not to assess a child for an EHC Plan. A ‘live’ appeal would mean we have no powers to consider this complaint. If the Tribunal refused to consider Ms X’s appeal because it was out of time, she could ask the Council to carry out a new assessment. A refusal would trigger a fresh right of appeal. We could not achieve anything more and so we will not investigate.

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Final decision

16. We will not investigate this complaint because it is late and Ms X could have complained earlier. An appeal to the Tribunal places the complaint outside out jurisdiction. There would also be no worthwhile outcome by investigating.

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Investigator's decision on behalf of the Ombudsman