Summary: We will not investigate this complaint about the Council’s handling of an Education, Health, and Care Plan. Some of Miss X’s complaint is late, and there are parts we cannot consider, because Miss X raised the issues with the SEND Tribunal. Of the parts remaining we could consider, we will not. The Council have apologised and agreed to take action; therefore it is unlikely further investigation by us would lead to a different outcome for Miss X.

The complaint

1. Miss X was unhappy with how the Council managed her child’s (G) Education, Health, and Care (EHC) Plan for the last five years. She said she had appealed to the SEND Tribunal, about G’s EHC Plans, on two occasions, more recently in 2022. Miss X said the Council’s failures have had a significant impact on G’s wellbeing and caused her stress.

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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 courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
5. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
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.
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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

10. Miss X said the Council had, in previous years, failed to complete a satisfactory EHC Plan for G. She said in 2022, because she was unhappy with the EHC Plan, the Council issued at that point, she appealed to the SEND Tribunal.
11. We will not investigate Miss X’s complaint about the Council’s actions before the SEND Tribunal hearing. This is because any complaints about those matters are now late, and I have not seen any good reasons why they could not have been made to us sooner.
12. Additionally. the law I have referred to at paragraphs four and five, means we cannot investigate anything relating to the Council’s decisions about G’s placement, or education provision for a significant period. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. Miss X then went on to appeal, so the period that we cannot investigate ends when the tribunal comes to its decision.
13. Miss X said the Council delayed issuing G’s EHC plan in early 2024, after the tribunal decision, and did not put in place, all the provision G was then owed. The Council apologised it delayed issuing G’s EHC Plan in the required timescales.
14. Miss X was unhappy the Council had not carried out an assessment, to see if G could have access to a specific therapy, which was included in their special education provision (Section F). I asked the Council for an update on this aspect, and it said it had not been able to locate a suitable assessment centre. It said it would raise this in G’s annual review. It also apologised it had not been able to progress this assessment.
15. We will not investigate the Council’s actions after the SEND Tribunal, including any delays in finalising G’s EHC Plan and securing an assessment for therapy for G. The Council have apologised in relation to both aspects and said it will revisit this request. Because of these actions, it is unlikely any further investigation by us would lead to a different outcome.

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Final decision

16. We will not investigate Miss X’s complaint, because parts of it are late and parts of it are outside our jurisdiction. Of the parts remaining, further investigation would not lead to a different outcome for Miss X, beyond the actions the Council has already taken.

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Investigator's decision on behalf of the Ombudsman