The Ombudsman's final decision
Summary: We will not investigate this complaint about Education Health and Care plan delays. Parts of this complaint is late, or it is reasonable for Miss X to take the issue to the Tribunal. On the parts of the complaint we could investigate, the Council has already offered a proportionate remedy. This removes the need for us to investigate.
The complaint
Miss X complains the Council failed to follow Education, Health and Care (EHC) statutory guidelines for her child. Miss X also complains the EHC Plan did not meet her child’s needs, the Council failed to provide suitable alternate educational provisions and failed to follow professional recommendations. Miss X says the Council’s actions caused her family distress, as well as the impact on her child’s education and development. Miss X wants the Council to address missed provision and review its processes.
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 law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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 Tribunal in this decision statement.
In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss X complained to the Ombudsman in January 2026 about the Council’s actions in 2024 and 2025. I have seen no reason Miss X could not have complained to us sooner. So, the restriction in paragraph three applies and we will not investigate the Council’s actions before January 2025.
Miss X complained her child’s EHC plan was not suitable for, and did not accurately reflect, their needs or professional recommendations. Miss X had the right to appeal the EHC plan’s contents to the Tribunal, and it would not have been unreasonable for Miss X to use that right. So, we will not investigate parts of the complaint relating to the contents of the EHC plan.
Miss X also complained to the Council about a lack of alternative educational provision. Miss X says the provision the Council provided was not suitable to meet her child’s needs. In its response to Miss X’s complaint, the Council said it could not provide the further provisions Miss X wanted because it did not have the professional evidence to justify it. As there was no specific provision in the child’s EHC plan, an investigation now is unlikely to lead to a different outcome. Also, this matter is not separable from matters which Miss X could have raised at the Tribunal. So, we will not investigate.
Miss X complained to the Council because it failed to issue a decision after an EHC annual review within the statutory timescale. Miss X also complained the Council delayed arranging an educational psychologist to assess her child, despite her request. Failure to adhere to statutory delay is service failure and if we were to investigate, we would likely find fault with the Council. However, the Council has accepted fault and offered Miss X a financial remedy which is line with our guidance. This removes the need for us to investigate.
Final decision
We will not investigate Miss X’s complaint because parts of this complaint is late, or it is reasonable for Miss X to take the issue to the Tribunal. On the parts of the complaint we could investigate, the Council has already offered a proportionate remedy. This removes the need for us to investigate.
Investigator's decision on behalf of the Ombudsman