Summary: We cannot investigate Ms X’s complaint the Council failed to review and amend her child’s Education, Health and Care Plan within the legal timeframe, because this part of Ms X’s complaint is late and there are no good reasons why we should consider it now. Nor can we investigate her complaint about the Council’s conduct during an appeal to the SEND Tribunal because this is outside of our jurisdiction.

The complaint

1. Ms X complained the Council did not review and amend her child, Y’s, Education, Health and Care (EHC) Plan within the legal timeframe. She said this caused Y to miss a year of school. She said the Council did not provide alternative provision while Y was out of school and the family have suffered financially.
2. Ms X also complained the Council failed to follow directions from the SEND Tribunal during an appeal. She said this caused delay and uncertainty.

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The Ombudsman’s role and powers

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 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)
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…”.
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 Tribunal in this decision statement.

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How I considered this complaint

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

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My assessment

10. A child or young person with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. Ms X’s child, Y, has an EHC Plan.
11. In 2022, The Council reviewed Y’s EHC Plan. Ms X said it did not send her its decision following the review which she said frustrated her right of appeal to the Tribunal.
12. Ms X also complained the Council did not complete a phase transfer review of Y’s EHC Plan in 2023 when Y was due to move between phases of education.
13. Ms X said the Council did not respond when she asked it for help with securing alternative provision when Y was not able to attend school in the academic year 2022/23.
14. Finally, Ms X complained the Council did not follow directions during a Tribunal hearing which caused delay.
15. We will not investigate Ms X’s complaints about the Council failing to review and amend Y’s EHC Plan within the legal timeframe in 2022 and 2023, or that it did not secure alternative provision while Y was off school during the academic year 2022/23. This is because these parts of her complaint are late. I have considered the reasons for complaining to us late, which include ill health and the Council delaying in responding to Ms X’s complaint. However, I am not satisfied these are sufficient reasons to explain the length of delay before coming to us. Therefore, I will not exercise discretion to consider these parts of the complaint.
16. We cannot investigate the Council’s failure to follow a Tribunal direction during the appeal because the law I have highlighted at paragraph six prevents us from investigating the Council’s conduct during a Tribunal appeal.

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Final decision

17. We cannot investigate Ms X’s complaint because part of it is late without sufficient good reasons to exercise discretion to consider it and the law says we cannot investigate conduct during a Tribunal appeal.

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Investigator's decision on behalf of the Ombudsman