Summary: We will not investigate this complaint that the Council has failed to provide suitable education provision for Mrs X’s son. This is because the issue is not separable from Mrs X’s right of appeal to a tribunal, which it was reasonable for her to have used. Other matters are late.

The complaint

1. Mrs complains that the Council has failed to ensure her son, Y, has had a suitable education for several years.

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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.

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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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My assessment

8. I will not investigate Mrs X’s complaint that the Council failed to provide suitable education provision going back several years. This is because this element of her complaint is made late, and I see no reason why it could not have been made sooner.
9. Mrs X did complain in June 2024 so how the Council dealt with Y’s education from June 2023 is in time.
10. The Council carried out a review of Y’s EHC Plan in June 2023. It issued a final EHC Plan stating that Y should attend a mainstream school.
11. I will not investigate Mrs X’s complaint about the changes made to the EHC Plan, including the type of education placement named. This is because Mrs X had a right of appeal to the SEND Tribunal which it is reasonable for her to have used.
12. I also cannot investigate Mrs X’s complaint about what education provision has been arranged since the Council issued its final EHC Plan. The courts have established that if someone has a right of appeal with the SEND Tribunal, we cannot investigate any matter that is closely linked to the matters subject to that appeal right. When issuing its final EHC Plan, the Council concluded that Mrs X’s child’s education provision would be met by a mainstream school something that. Mrs X disputes. This matter is therefore not separable from her right of appeal to the SEND Tribunal.

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Final decision

13. We will not investigate Mrs X’s complaint because the issues of education provision from June 2023 are not separable from Mrs X’s right of appeal to a tribunal. Other matters are late.

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Investigator's decision on behalf of the Ombudsman