Summary: We will not investigate Mrs X’s complaint about alternative educational provision, the assessment of her child’s special educational needs, the Council’s conduct in relation to a Tribunal, and transport to a school. Each of the matters complained of is outside our legal powers, and where discretion to waive that exists, there is no good reason to do so.

The complaint

1. Mrs X said the Council:

• Failed to make educational provision for her child for 15 months from March 2022 to June 2023;
• Carried out an inadequate assessment of her child’s special educational needs (SEN);
• Failed to organise the bundle properly for the resulting appeal hearing; and
• Failed to provide transport to the school the Council named on her child Education Health and Care (EHC) Plan.

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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 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)
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. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.

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How I considered this complaint

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. The documents provide by Mrs X are extensive and make it clear that no part of the complaint lies within our legal powers. The key reasons for this are time and the effect of Mrs X’s appeal to the SEND Tribunal. I will take the four elements of the complaint in turn.
10. The matter of the educational provision for Mrs X’s child between March 2022 and June 2023 is late. She complained to us more than 12 months after she was aware of the matter. As she was able to appeal to the SEND Tribunal against the EHC Plan the Council issued on 4 May 2023, she could equally have complained to the Council about this promptly and contacted us if it declined to consider the matter. There is no good reason to exercise the discretion available to consider this late matter.
11. The assessment of the child’s SEN carried out by the Council is closely linked to decisions about the child’s educational needs that were subject to an appeal to the SEND Tribunal by Mrs X. We cannot therefore investigate this.
12. The bundle for the SEND appeal hearing is directly part of the SEND Tribunal process. Issues with the bundle were for the SEND Tribunal to consider, not us.
13. Finally, issues with transport are legally complex. Where a child does not attend the educational setting named in Section I of a final EHC Plan, we have no legal power to comment on the education offered. That affects the whole period form the date the EHC Plan was issued, and the appeal right arose, to the date of the SEND Tribunal hearing. But where the child is attending the setting named, we are able to consider complaints that the provision specified is not being made, and by extension, whether transport should have been provided, though not the form of that transport.
14. In this case the child attended the named provision in the autumn of 2023. This matter is not late. We could in other circumstances have considered the transport provided. But the documents Mrs X provided show the SEND Tribunal intervened and ordered the transport to the named setting be inserted in Section F of the EHC Plan. We cannot therefore investigate the transport to the named setting as it was considered by the SEND Tribunal. As stated earlier, once the child was not attending the named provision, we otherwise lack the legal power to consider educational provision for the child in any form between the date the EHC Plan was issued and the date of the Tribunal,
15. In summary, I am satisfied that no part of the complaint lies within our legal powers and that in that part where discretion to waive that is available, there is no good reason to do so.

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Final decision

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

• Matters before May 2023 are late and there is no good reason to exercise discretion to investigate; and
• Other matters are directly part of or are closely linked to matters considered by the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman