The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about how the Council dealt with her request for a change of school. This is because she used her right of appeal to a tribunal and the issues raised are either not separable from that appeal or are made late.
The complaint
Mrs X complains about how the Council dealt with her request for a new school for her child who has an Education Health and Care (EHC) Plan.
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 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)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
In 2023, Mrs X asked the Council to name a new school on her child’s EHC Plan. The Council considered Mrs X’s request but decided her child’s current school could meet their needs so in July 2023, it issued a final EHC Plan reflecting this. Mrs X appealed the contents of the EHC Plan to the SEND Tribunal and asked the Council to arrange alternative education provision.
I will not investigate the actions of the Council before it issued its final EHC Plan. This is because Mrs X’s complaint about these matters is made late and I see no good reason why she could not have raised these matters sooner.
I cannot investigate the contents of the final EHC Plan issued in July 2023, including the school named by the Council. This is because Mrs X used her right of appeal against this to the SEND Tribunal. I cannot investigate the education provision in place for her child during that appeal because it is not separable from the appeal itself, which considered the suitability of the school place arranged by the Council.
Mrs X complains about the actions of the Council during the appeal and says they led to delays with the appeals process and therefore delays in her child starting a new school. I cannot investigate the conduct of the Council during the appeal as this was a matter for the SEND Tribunal to address during proceedings.
It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
Final decision
We will not investigate Mrs X’s complaint because she used her right of appeal to a tribunal and the issues raised are either not separable from that appeal or are made late
Investigator's decision on behalf of the Ombudsman