Summary: We will not investigate this complaint about the Council’s failure to make Ms X’s child’s special educational provision for 15 months. This is because 11 months of this period is affected by a limit on our legal powers that means we cannot investigate it. While there was fault by the Council in the period we could investigate, the likely maximum remedy we would propose for the fault over four months is smaller than the remedy offered by the Council for failings it has identified in its actions during the full period, which includes the period we cannot investigate.

The complaint

1. Ms X said the Council failed to make the special educational provision specified in her child’s Education Health and Care (EHC) Plan between January 2022 and April 2023. She said the Council could have made the provision it eventually agreed much sooner without the need for her having to appeal to the Special Educational Needs and Disability Tribunal.

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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 could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), 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 SEND Tribunal in this decision statement.
6. The courts have held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999);  R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407
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:

• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

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

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My assessment

11. The Council accepted in its final response to Ms X’s complaints that it had failed to make educational provision for her child over a period of 15 months between January 2022 and April 2023, when her appeal to the SEN Tribunal was resolved. It also accepted it had caused Ms X unnecessary time and trouble by poor communication and long delay in dealing with her complaint.
12. The delay in the Council’s complaint handling means there is a good reason for me to exercise the discretion available to us to consider matters that are over 12 months old. Ms X could not have complained to us sooner.
13. However, we only have the legal authority to investigate the period from January to May 2022. This is because of the legal judgement referred to above. The legal bar runs from the date of issue of an EHC Plan that is subsequently appealed to the date of the Tribunal hearing, or to the date of the Council’s concession of the appeal, if earlier. It is for the SEND Tribunal to decide what education the child should receive, and we cannot say if the setting the Council named was suitable. We cannot comment on any lack of alternative educational provision offered to a child during that period, even where we would otherwise find fault. We could only comment on the provision if the child attended the named setting while waiting for the appeal, and the provision was alleged not to have been provided for the child in that setting at that time. That is not the case here as the child was not attending the named provision.
14. The Council’s acceptance of fault means there was fault by the Council in the period we can investigate, which is from January to May 2022. Were we to have investigated, we would have recommended an apology and a payment in recognition of the loss of education. The maximum amount we recommend in such cases is £800 per school month. The period concerned is four months, minus three weeks of school holidays in February and at Easter. Assuming we recommended the maximum amount per month, that would have been £2,600. We also recommend payments where a person has had unnecessary time and trouble in reaching us due to delays in complaint handling. That is usually £250, though it can be £500 in exceptional cases.
15. The Council apologised to Ms X for the fault it found in not making provision for her child. It also sent an apology to her child. It offered her £3,600 for the loss of education and £500 for her time and trouble in pursuing her complaint. That sum is greater than we would have recommend for the matters within our legal powers even at the highest end of the range we use. Therefore, if were to investigate, we could not achieve a greater remedy.

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Final decision

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

• We cannot investigate the period May 2022 to April 2023 because a legal judgement prevents us doing so and Ms X had exercised her right to appeal to the SEND Tribunal; and
• Investigating the matters that are within our legal powers would not lead to a different or better outcome for Ms X.

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Investigator's decision on behalf of the Ombudsman