Summary: Mrs X complained about delays and other failures in how the Council provided education for her son, who has special educational needs. We ended our investigation because part of Mrs X’s complaint was late, it would have been reasonable for Mrs X to use her appeal rights and the Council has not yet had an opportunity to respond to the latest issue.

The complaint

1. Mrs X complains the Council:
• failed to deliver the content of her child, Y’s, Education, Health and Care Plan to them when they became too unwell to attend school in late 2022;
• failed to finalise Y’s EHC Plan following an annual review;
• took too long to respond to her complaint.
2. Mrs X says this caused her significant distress and frustration and that Y has missed out on over a year of education.
3. Mrs X wants the Council to find and provide a special school for Y and apologise for the distress caused.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
10. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
11. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

12. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s response to Mrs X’s complaint; and
• the Ombudsman’s role and powers.
13. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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My findings

Education health and care plans

14. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
15. There is a right of appeal to the Tribunal against various Council decisions about EHC plans, including a decision not to amend an EHC Plan following a review or reassessment.
16. 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. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

Background

17. Mrs X’s child, Y, has special educational needs and an Education Health and Care (EHC) plan from the Council.
18. The Council decided in 2022 that Y should attend School A. However, after starting the new term in September, Y struggled and stopped attending in late 2022.
19. The Council carried out an emergency review of Y’s EHC plan in early 2023 and told Mrs X, in April 2023, that it did not intend to make any changes to Y’s EHC plan.
20. Mrs X prepared to appeal that decision, but after seeking advice decided not to. However, Y did not return to School A.
21. Mrs X complained to the Council in March and May 2023 about the lack of education for Y. The Council replied to Mrs X’s first complaint, but not to her second.
22. The Council carried out a further review of Y’s EHC plan in early 2024, but has not yet sent Mrs X an amended plan.
23. Mrs X complained to the Ombudsman in May 2024 about the lack of education for Y since late 2022.

Ending my investigation

24. After carefully considering the information Mrs X has provided, my view is that the Ombudsman cannot investigate Mrs X’s complaint.
25. Mrs X complained to the Ombudsman in May 2024, so her complaint about events before May 2023 is late. We can only consider late complaints if we decide there are good reasons. Mrs X says that the past year has been very stressful and exhausting for her, supporting Y at home. I am not satisfied these are good reasons she could not have complained to us sooner. Mrs X complained to the Ombudsman before she received the Council’s final response which directed her to us. Therefore, I am also not satisfied the Council’s delay in responding to her complaint is a good reason to investigate events before May 2023 now.
26. In deciding not to amend Y’s EHC plan in April 2023, the Council decided that School A remained suitable for Y. Mrs X had the right to appeal that decision. She knew about this right, because she started the process of appealing and sought advice about this. If Mrs X was not satisfied with the support set out in Y’s EHC plan or that School A was suitable him, she could have appealed. I am satisfied it would have been reasonable for Mrs X to appeal and therefore, I cannot investigate anything connected with the decision not to amend Y’s EHC plan.
27. My view is that, from April 2023, Y’s non-attendance at School A was linked to, or was a consequence of, Mrs Y’s disagreement about the special educational provision or the educational placement in the EHC Plan. Therefore, I cannot investigate a lack of special educational provision, or alternative educational provision for Y.
28. Mrs X has not yet complained to the Council about any delay issuing a final amended EHC plan following the early 2024 review. I am satisfied it would be appropriate for the Council to have an opportunity to respond to Mrs X’s complaint about that delay, before the Ombudsman could investigate.
29. We must use public money carefully. I do not consider it would be a good use of public resources to investigate the delays in the Council responding to Mrs X’s complaint, as I cannot investigate the underlying issues.

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Final decision

30. I have ended my investigation. We cannot investigate Mrs X’s complaint because part of it is late, it would have been reasonable for Mrs X to use her appeal rights and the Council has not yet had an opportunity to respond to the latest issue.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman