The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about the Council’s failure to provider her son Y with an education when he stopped attending school in September 2020. That is because it is late. Mrs X also complained about the Council’s actions in relation to his Education Health and Care plan. As Mrs X has appealed to Tribunal, we have no jurisdiction to investigate this complaint.
The complaint
Mrs X complained the Council: Failed to provide her son Y, an education after he stopped going to school in September 2020.
Did not include Y’s diagnosis of autism in his Education, Health and Care plan issued in December 2020.
Provided incorrect information to Y’s new school, which delayed his start to education in September 2021.
The Ombudsman’s role and powers
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) 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.
The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to 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) The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
The complainant now had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
My assessment
Y stopped attending education in September 2020. Following that, the Council issued Y’s final EHC plan in December 2020. That named mainstream provision.
Mrs X lodged an appeal to the Tribunal about the contents and provision specified in the EHC plan in February 2021. The Council agreed to name Mrs X’s preference for a specialist school. It issued an amended final EHC plan in June 2021 following the outcome of the Tribunal.
Lack of educational provision Mrs X complained to the Ombudsman in February 2022. Therefore, her complaint that the Council failed to provide Y an education when he stopped attending school in September 2020 is late. We have discretion to set aside this restriction where we decide there are good reasons. In this case I have decided not to exercise discretion because it is reasonable to expect Mrs X to have complained to us about the lack of education sooner.
We cannot investigate Y’s lack of education from the date the Council issued Y’s EHC plan in December 2020 until the conclusion of the Tribunal. That is because we have no discretion to investigate where someone has used their right of appeal.
Failure to include the autism diagnosis in the EHC plan We cannot investigate Mrs X’s complaint about the Council’s failure to include correct information about Y’s autism diagnosis in the final EHC plan. That is because Mrs X appealed the EHC plan to Tribunal.
Delays in starting Y’s educational placement in September 2021 Mrs X complained to the Council in September 2021 about delays in Y starting at his new school placement. The Council has not yet responded to this complaint therefore it is premature. Mrs X can bring her complaint back to the Ombudsman if she is unhappy with the Council’s response.
Final decision
We will not investigate this complaint about educational provision. That is because the substantive matters have been considered by the Tribunal therefore we have no jurisdiction to investigate.
Investigator's decision on behalf of the Ombudsman