The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint about a failure to provide alternative education and failures in the Education Health and Care Plan process. This is because parts of the complaint are late and other parts were addressed by a Tribunal appeal.
The complaint
Ms X complained the Council: did not ensure her son, Y’s school, delivered the provision in his Education Health and Care Plan (EHC Plan) when he moved to a new school in April 2021; did not carry out an adequate re-assessment of Ys special educational needs (SEN) in 2021-2022. She said she had to obtain private reports because the reports obtained by the Council were not sufficiently detailed; made errors when consulting with schools and forced her to express a preference for a mainstream school when she wanted a special school; declined her request for tutors when Y was attending school on a part-time basis in 2022 and 2023, and declined to include this in Y’s final amended EHC Plan dated September 2022; and conceded the appeal one hour before the Tribunal hearing was due to start.
Ms X said that, as a result of the Council’s failings, she lost her job because she had to be at home for Y, had to borrow money for private reports, and suffered worry and stress that aggravated a physical condition. Ms X also said Y missed out on education and educational support.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 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) We can still investigate a complaint where someone has appealed to a tribunal or court if their legal action was ‘misconceived’. This is where someone has asked the tribunal or court to do something it cannot legally do.
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.
How I considered this complaint
I considered information provided by Ms X.
I considered the Ombudsman’s Assessment Code.
My assessment
Missed provision 2021 Ms X complained that Y’s school did not provide all the support in Y’s EHC Plan, when he moved to the school in April 2021. In its complaint response, the Council explained it had supported the school to deliver the provision, although it accepted Y did not receive all the support in his EHC Plan initially.
We expect people to complain to us within 12 months of the event they are complaining about. Ms X complained to us in February 2024. I have not seen evidence to suggest she could not have complained to us earlier. Therefore, we will not investigate this complaint because it is late.
Assessment of needs and EHC Plan process Ms X was unhappy with the way the Council carried out its assessment of Y’s SEN, including the reports it obtained, and its consultation with schools. She was unhappy it decided Y’s needs could be met in a mainstream school when she wanted a special school, and that it therefore asked her to specify her preferred mainstream school in addition to stating her preferred special school. Ms X was unhappy with sections B, F and I of the EHC Plan and lodged an appeal in December 2022. She said the Council conceded an hour before the Tribunal hearing was due to start. All of these matters were within the remit of the SEND Tribunal. Ms X had a right of appeal, which she exercised.
The law says we cannot investigate matters there were or could have been considered by the Tribunal, and this includes the way in which the Council handled the Tribunal case. Therefore, we cannot investigate these complaints.
Alternative education Ms X also expressed concern that the Council refused to provide alternative education for Y when he was attending school on a part-time basis. Where a child is on the roll for the school named in their EHC Plan, the Council is entitled to expect the child will attend that school and the school will deliver the support set out in the Plan. It is therefore not required to arrange alternative provision, unless it decides the child is not able to attend for health reasons, not connected to their SEN. Whether the school is suitable is for the SEND Tribunal to determine.
Ms X was aware Y was not receiving a full-time education from March 2022. Therefore, her complaint about a lack of provision between March 2022, and September 2022, when the final amended EHC plan was issued, was made more than 12 months after the events. I have not seen evidence to show she could not have complained to us sooner. Therefore, we will not consider this part of the complaint further because it is late. We will not investigate the period between September 2022, when Ms X got appeal rights that she exercised, and the Tribunal outcome, because this is too closely connected to the matters addressed by the appeal process.
Final decision
We will not investigate Ms X’s complaint because parts of the complaint are late and parts of the complaint have been, or could have been, addressed by the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman