Summary: Mr X complained about Derbyshire County Council and NHS Derby and Derbyshire Integrated Care Board. We will not consider his complaint about the delay issuing his son’s Education, Health and Care Plan. That complaint is late. Also, we cannot consider Mr X’s complaint about not securing health provision to enable Y to attend school. That is bound up with matters which Mr X appealed to the First-tier Tribunal (Special Educational Needs and Disability), which places the complaint out of jurisdiction.

The complaint

1. Mr X complains about Derbyshire County Council (the Council) and NHS Derby and Derbyshire Integrated Care Board (the ICB).
2. He says the Council delayed issuing his son’s Education, Health and Care Plan (EHC Plan) following a transition review in November 2022. That caused the family time and trouble, and frustration.
3. He also says the Council and ICB did not secure health provision in Section G of the EHC Plan to enable his son to access education between September 2023 and November 2024.
4. Mr X says events have caused his son to miss education, feel socially isolated and intellectually frustrated, leading to physical responses. He would like the Council to make alternative provision when his son cannot attend school. Mr X also says the family suffered extreme and unnecessary stress.
5. He also says the Council did not address all his complaints and should have considered his complaint under the statutory complaint procedures.

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The Ombudsmen’s role and powers

6. 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 an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4))
7. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we could add to any previous investigation by the bodies (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), 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.
9. 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 and Health Service Commissioners Act 1993, section 4(1)(a))
10. 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)
11. 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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How I considered this complaint

12. I considered evidence provided by Mr X as well as relevant law, policy and guidance.
13. Mr X had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

14. The Council completed Mr X’s son’s EHC Plan transition review in November 2022 and then delayed issuing a final EHC Plan until June 2023.
15. I consider this complaint is late. Mr X complained to the Ombudsman over 12 months (November 2024) from when the Council issued the EHC Plan. Mr X said that delay was because of combination of issues. That included prioritising getting his son into school, the demands of support his son’s complex range of needs and being advised to write to senior staff at Council instead of lodging a complaint. I do not doubt it must have been difficult for Mr X to support his son and find the time to complain to the Council. But I am not persuaded this justified him taking 17 months to approach the Ombudsmen.
16. In any event, the Council accepted it delayed issuing the EHC Plan, apologised, and offered a symbolic payment of £750 to Mr X to remedy the time and trouble the family suffered. Therefore, an investigation is unlikely to lead to any further findings or outcomes for Mr X.
17. Mr X also says his son could not attend school from September 2023. The ICB did not arrange appropriate health provision for his son.
18. The Council and ICB agreed his son did not receive enough support for his health needs to attend school.
19. However, the content of Section G is appealable to the Tribunal, and Mr X used that appeal right. This places Mr X’s complaint about the lack of provision outside the Ombudsman’s jurisdiction. That is because the failure to provide health provision between September 2023 and November 2024 is bound up with matters which were subject of the appeal. The need for health provision was linked to, or a consequence of, Mr X’s disagreement about the content of Section G.
20. I understand this is frustrating for Mr X and the family. But the law says I cannot investigate this complaint from the date the Council issued the EHC plan (June 2023) until the Tribunal process finished (November 2024).
21. For the reasons above, I will not investigate the complaints above.
22. The Ombudsmen will not usually investigate how a council has handled someone’s complaint if we decide not to investigate the substance of the complaint. It simply is not a good use of our resources to do so. Therefore, I will not investigate Mr X’s complaint about how the Council handled his complaint.

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Decision

23. I will not investigate Mr X’s complaints because they are late and his appeal to the Tribunal places it outside the Ombudsmen’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman