The Ombudsman's final decision
Summary: We will not investigate this complaint about alternative educational provision between January 2021 and March 2022. The more recent part of the complaint concerns matters not separable from those where Mrs X exercised her right to appeal to a Tribunal. The earlier matters complained of are late, and there is no good reason to exercise discretion to investigate them now.
The complaint
Mrs X said the Council failed to make alternative educational provision for her son when he was out of school at times between January 2021 and March 2022.She also said the Council did not conduct the assessment process correctly when producing her son’s Education Health and Care (EHC) Plan.
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), 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 held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999); R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407 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)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The complaint correspondence states Mrs X appealed against the EHC Plan the Council issued on 22 June 2022. The content of that EHC Plan and how it was arrived at is not separable from matters in respect of which Mrs X had a right to appeal to the SEND Tribunal. The court ruling referred to above also means we cannot investigate any alternative provision made or not made by the Council after the date it is issued the EHC Plan. That is because Mrs X used her right of appeal.
The period in the previous school year, prior to late July 2022, was more than 12 months before Mrs X complained to us. We will usually only exercise discretion to consider late matters if the person complaining was unaware of them until less than 12 months before approaching us, or if they were unable to complain sooner. Mrs X would have been aware her son was not attending school from the time it first happened. The Council dealt with her complaint within three months when she complained. Mrs X was also able to appeal to the SEND Tribunal, and could have contacted us sooner, particularly if there was any doubt about complaining.
Final decision
We will not investigate Mrs X’s complaint because: The content of an EHC Plan and how it was arrived at is not separable from matters where there is a right of appeal to the SEND Tribunal that she used; We cannot consider what alternative educational provision should be made for a child from the date the Council issued the EHC Plan against which Mrs X appealed; and Matters in the previous school year are late, and there is no good reason to exercise discretion to investigate them now.
Investigator's decision on behalf of the Ombudsman