Summary: We will not investigate Ms X’s complaint about the Council’s handling of her child’s Education, Health and Care Plan. Part of the complaint is late, and it was reasonable for Ms X to complain sooner. Ms X used her right of appeal and that places the rest of the complaint outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Ms X, complained about the Council’s handling of her child’s Education, Health and Care Plan (EHC Plan). Ms X complains the Council took too long to issue a final EHC Plan and there were issues with the consultation process. Ms X says this means the EHC Plan was unsuitable and left her child without an appropriate education. Ms X says this means she had to appeal to the Tribunal.

Back to top

The Ombudsman’s role and powers

2. 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)
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.

Back to top

How I considered this complaint

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

Back to top

My assessment

7. We will not start an investigation into Ms X’s complaint. The reasons for this are below.
8. Firstly, the Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. In this case, Ms X asked the Council to assess her child for an EHC Plan in October 2023. The Council should have completed the process by February 2024. The Council issued an EHC Plan in May 2024. This point 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 to us earlier about the delay issue.
9. Turning to the rest of this complaint, Ms X was unhappy with the content of the EHC Plan and how the Council decided this. The EHC Plan the Council issued named a type of school only and Ms X says this left her child without a suitable education. These issues are directly linked and cannot be separated.
10. Parents who want to challenge the content of an EHC Plan have a right of appeal to the SEND Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. Ms X used her right of appeal.
11. The law is clear that when a parent has appealed to a tribunal, the matter appealed, or anything closely linked, are outside our jurisdiction. In this case it includes the setting named, how this was decided, and any claimed lack of education due to the content of the EHC Plan. This exclusion applies from when the appeal rights were available to when the Tribunal issued its decision. The Council subsequently conceded the appeal and agreed to name Ms X’s preferred school.

Back to top

Final decision

12. We will not investigate Ms X’s complaint because part of it is late. Ms X then appealed to a tribunal and this places the rest of the complaint outside our jurisdiction.

Back to top

Investigator's decision on behalf of the Ombudsman