Summary: We cannot investigate this complaint about the Council’s handling of the Education, Health and Care planning process. Part of the complaint is late. For the remainder, Miss Y used her right to appeal to the First-Tier Tribunal.

The complaint

1. Miss Y complained about the content of and amendments to her child’s Education, Health and Care (EHC) Plan.
2. Miss Y said this caused distress and a loss of education for her child.
3. Miss Y wants the Council to name a preferred school for the child in the EHC Plan and offer compensation.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
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. 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

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

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My assessment

10. Miss Y has a child, Z, who has disabilities and an EHC Plan.
11. Miss Y complained the Council amended Z’s EHC Plan without properly consulting with her.
12. We cannot investigate this part of Miss Y’s complaint. The amendments to Z’s EHC Plan Miss Y refers to happened more than 12 months before she complained to us. It was reasonable to expect Miss Y to have complained to us sooner about this matter.
13. We also cannot investigate Miss Y’s complaint about the content of Z’s EHC Plan, including the school the Council named. Miss Y exercised her right to appeal to the Tribunal.
14. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
15. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
16. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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Final decision

17. We will not investigate this complaint because part of the complaint is late, and Miss Y exercised her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman