Summary: We will not investigate this complaint the Council failed to provide appropriate provision for Mrs X’s son. The complaint is late, and it was reasonable for Mrs X to have complained sooner. Mrs X’s complaint is also closely linked to her appeal to the SEND Tribunal which places the matter outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council failed to provide her son (Y) with a suitable full-time education from December 2022 until November 2023. Mrs X also complained the council failed to reimburse her for education she funded from March to July 2023. A solicitor, Mrs Z, supported Mrs X with her complaint to the Ombudsman.

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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. 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)
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.

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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What I found

Background

8. Mrs X’s son (Y) has an EHC Plan. Y stopped attending school full-time in December 2022. The Council held an emergency review of his EHC Plan in February 2023. Mrs Z states the minutes of the review refer to a package of education for Y consisting of three days alternative education, and two days via his school placement. Because of what was discussed at the review meeting, Mrs X funded alternative education for Y for three days a week until July 2023. The Council then agreed to fund the alternative education. Mrs X complains the Council has failed to reimburse the cost of alternative education she incurred up to July 2023. She also complains that while alternative education was then in place, the Council failed to provide a full-time education until November 2023.
9. In its response to Mrs X’s complaint the Council accepted it failed to secure education for Y from February to July 2023. The Council said that after the emergency review “it took away an action to consider whether additional financial support would be made available for the school to commission [alternative education].” It has offered a payment to Mrs X of £1425 for a failure to provide education from February to July 23. It has refused Mrs X’s request to refund the cost of the alternative education on the basis she appealed to the SEND Tribunal and could have asked the Tribunal to refund her costs. The Council does not seem to have responded to Mrs X’s complaint about a lack of education from July to November 2023.

Assessment

10. We will not start an investigation into Mrs X’s complaint.
11. Firstly, the Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. Mrs X’s complaint is therefore late as it dates to December 2022. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so. I do not consider that to be the case here. Mrs X could have complained much earlier and so we will not investigate.
12. But even if the above did not apply, another aspect of the Local Government Act would prevent us from investigating much of this complaint. Mrs X’s child’s absence from school was linked to the content of their EHC Plan. The Council had named a school which it felt was suitable. Mrs X disagreed and appealed the school named to the SEND Tribunal. When a parent has appealed, we have no powers to consider related matters from the point the appeal rights were available until the SEND Tribunal issues its decision – in this case May 2023 and May 2024 respectively. The education provided (or otherwise) links to the setting in the EHC Plan which was appealed to the SEND Tribunal. Because of this close link we cannot investigate.

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Final decision

13. We will not investigate Mrs X’s complaint. It is late and it was reasonable for Mrs X to complain earlier. Mrs X complaint is also linked to her appeal to the SEND Tribunal which places much of the complaint outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman