Summary: We cannot investigate part of Mrs X’s complaints about alternative educational provision or the inclusion of an Occupational Therapy report in her child’s Education, Health and Care (EHC) Plan because she appealed to a tribunal, and the law says we cannot investigate. We will not investigate part of the complaint because it is late. We will not investigate a delay in making the EHC Plan because there is insufficient injustice.

The complaint

1. Mrs X complained the Council failed to:
1. complete the Education, Health and Care (EHC) Plan process relating to her child, Y, in line with statutory timescales;
2. include an Occupational Therapy (OT) report in the finalised EHC Plan; and
3. provide alternative educational provision for Y when they were too unwell to attend school from July 2024.
2. Mrs X said the matter caused her distress and frustration.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
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. 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)
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 any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), section 34(B))

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How I considered this complaint

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

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My assessment

Delay in making an Education, Health and Care (EHC) Plan for Y

10. To comply with the statutory timescales the final EHC Plan should have been made by mid-late January 2025. The Council made the final EHC Plan in early-mid February 2025. There was a delay of just less than three weeks.
11. We will not investigate this complaint. A delay of approximately three weeks did not cause a significant enough injustice to warrant an investigation by the Ombudsman.

The Occupational Therapy (OT) report

12. We cannot investigate this complaint. Mrs X complained the Council failed to include an OT report as part of the final EHC Plan for Y. Mrs X also complained about the process the Council followed in making the final EHC Plan.
13. Because Mrs X appealed to the Tribunal about the content of Y’s EHC Plan, and the Tribunal considered this matter, the law says the Ombudsman cannot investigate how the original EHC Plan was made. The issues are too closely related.

Alternative educational provision for Y when they were too unwell to attend school from July 2024 to February 2025

14. Mrs X first complained to the Ombudsman in February 2026. Therefore, part of this complaint occurred more than 12 months before Mrs X complained to us.
15. I have seen no good reasons Mrs X could not have complained to the Ombudsman sooner about this matter. Consequently, we will not exercise discretion to investigate issues relating to alternative provision before February 2025, which is 12 months before Mrs X complained to us.

February 2025 Alternative Provision following a Tribunal appeal

16. In mid-February 2025 Mrs X appealed the content of Y’s EHC Plan to the SEND Tribunal. This included the educational arrangements for Y.
17. 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)
18. 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.
19. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
20. The Council made a final EHC Plan for Y in February 2025, and Mrs X appealed. Therefore, we cannot investigate this complaint because the matter complained about is too closely linked to the matters appealed to the Tribunal.

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Final decision

21. We cannot investigate part of Mrs X’s complaints because she appealed to a tribunal. We will not investigate part because it is late. We will not investigate the remainder because there is insufficient injustice.

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Investigator's decision on behalf of the Ombudsman