Summary: We will not investigate Mr X’s complaint about the Council’s handling of his son’s educational, health and care plan assessment and reviews. This is because the complaint relates primarily to issues which took place more than 12 months before he first raised the matter with us and we consider it would have been reasonable for him to complain to the Council and come to us sooner.

The complaint

1. The complainant, Mr X, complains the Council let his son down at various stages while assessing and reviewing his need for an education, health and care plan (EHCP). He is also unhappy the Council failed to put in place the provision agreed in the EHCP and says he went to substantial expense to instruct solicitors and carry out private assessments to ensure his son’s needs were met.

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The Ombudsman’s role and powers

2. 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 not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

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

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 law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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

7. I considered information provided by Mr X and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mr X’s complaint details what he sees as failures by the Council in the EHCP process dating back to September 2019. However Mr X did not complain to the Council until March 2023 and he came to us on 30 July 2023. Any complaint about the Council’s actions before 30 July 2022 is therefore late. The majority of the issues Mr X raises date from before 30 July 2022 and they are therefore not subject to investigation as set out at Paragraph 3.
10. Mr X has explained he did not come to us sooner because he was told he had to complain to the Council first but this does not provide good reason to exercise our discretion to investigate the complaint. This is because Mr X did not raise his initial complaint until March 2023, more than a year after the main issues he complains about took place and I have seen no evidence of any real delays by the Council in dealing with the complaint.
11. Part of the complaint does however relate to more recent matters; specifically the EHCP review process carried out in 2022. Mr X says he received no report of the Council’s educational psychologist’s visit to her son’s school as part of the 2022 review, but this issue taken in isolation did not cause Mr X or his son significant injustice. Mr X references this issue in claiming the Council’s decision that his son could continue in mainstream school with provision was flawed but this is not a conclusion we could reach.
12. Mr X decided to pay for private assessments and solicitors to challenge the Council’s approach but if he disagreed with the Council’s decisions it would have been reasonable for him to appeal. We would not therefore recommend the Council reimburses Mr X for his costs.

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Final decision

13. We will not investigate this complaint. This is because the main issues Mr X complains about are late and the remaining issues did not cause him significant injustice. Mr X’s claim for costs relates to the Council’s judgement and decisions on the additional provision needed for his son and if Mr X had wished to challenge the decisions it would have been reasonable for him to appeal.

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Investigator's decision on behalf of the Ombudsman