Summary: We will not investigate this complaint about the Council’s actions in respect of Mrs X’s child’s special educational needs. Matter before early September 2024 are late, and there is no good reason to exercise discretion to investigate them now. Matters after that date, when the Council issued an amended Education Health and Care Plan for the child, carried a right of appeal to the SEND Tribunal it would have been reasonable to use.

The complaint

1. Mrs X says the Council failed to meet her child’s special educational needs (SEN) by:

• A poor review of their Education Health and Care (EHC) Plan that she had to end after three meetings;
• Leaving her to write the EHC Plan;
• Failing to supply academic data and failing to plan for post-16; and
• Poor communications.

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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. 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)
5. 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.
6. 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)
7. 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.
8. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

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 another body better placed to consider this complaint.(Local Government Act 1974, section 24A(6), as amended, section 34(B))
 

9. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

10. I considered information provided by the complainant and the Council.
11. I considered the Ombudsman’s Assessment Code.

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My assessment

12. Mrs X’s complaint divides into two time periods before and after the Council issued an amended EHC Plan for her child in early September 2024.
13. The review of the child’s EHC Plan took place in October 2023. The Council issued the final amended EHC Plan in early September 2024. Mrs X approached us in November 2025. Mrs X would have become aware of the matters she complained of to us between 14 and 25 months before she approached us. We may exercise discretion to investigate matters more than 12 months old if someone could not have complained sooner, but in this case there was not enough delay by the Council in dealing with Mrs X’s complaint to affect that.
14. Once the Council issued the final EHC Plan in September 2024, Mrs X had a right of appeal to the Tribunal it would have been reasonable to use if she thought the provision or setting proposed for her child was unsuitable. Where a person disagrees with the provision specified, it is not for us to say what it should have been. That is the role of the Tribunal. How the Council conducted the process before issuing the final EHC Plan is also directly connected to its decisions about the EHC Plan’s content.
15. The Information Commissioner is also better placed than us to consider complaints of alleged failure to disclose personal data. The Commissioner has powers to require disclosure and to impose penalties that we lack.

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Final decision

16. We will not investigate Mrs X’s complaint because:

• Matters before September 2024 are late, and there is no good reason to exercise discretion to investigate them now;
• Matters after September 2024 are closely related to the content of the child’s EHC Plan, in respect of which Mrs X had a right of appeal to the SEND Tribunal it would have been reasonable to use; and
• Another body is better placed than us to consider complaints about alleged failures to disclose personal data.

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Investigator's decision on behalf of the Ombudsman