The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint that the Council has failed to arrange suitable full-time education for her child since 2022. This is because part of her complaint is not separable from her appeal to a tribunal, part of her complaint is made late, and part has not been considered through the Council’s complaints procedure.
The complaint
Mrs X complains that her child has been out of education since 2022 without any alternative education provision.
The Ombudsman’s role and powers
We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability - SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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 law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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 Council issued a final Education Health and Care (EHC) Plan for Mrs X’s child in November 2023. Mrs X appealed to the SEND Tribunal as she felt the school named in the EHC Plan could not meet her child’s needs. The Council responded to a complaint from Mrs X in April 2024.
I cannot investigate the education provision in place from November 2023 up to when the SEND Tribunal issued its final order. This is because Mrs X appealed the provision named in the EHC Plan to the SEND Tribunal, and the education provision in place during that period is not separable from the appeal itself.
I will not investigate Mrs X’s complaint about the education provision in place prior to November 2023 because these events happened too long ago, and I see no good reason why Mrs X could not have approached the Ombudsman when the Council issued its final response in April 2024.
Finally, I will not investigate Mrs X’s complaint about the education provision in place for her child following the Tribunal’s decision. This is because Mrs X would first need to raise this through the Council’s complaints procedure.
Final decision
We will not investigate Mrs X’s complaint because part of her complaint is not separable from her appeal to a tribunal, part of her complaint is made late, and part has not been considered through the Council’s complaints procedure.
Investigator's decision on behalf of the Ombudsman