Slough Borough Council

The Ombudsman's final decision

Summary: We will not investigate this complaint about the Council’s handling of an Education, Health and Care Plan. Some of the complaint is late, and Mrs X appealed to the First-Tier Tribunal (Special Educational Needs and Disability).

The complaint

Mrs X complained about delay in issuing the Education, Health and Care (EHC) Plan for her child. Additionally, Mrs X complained no draft was supplied before finalisation, the content of the EHC Plan was wrong, there was a lack of provision, the educational psychologist’s report was inadequate, the Council’s conduct during the Tribunal process was unacceptable, and it did not reimburse Mrs X for a report she obtained.

Mrs X said this caused distress and financial outlay.

Mrs X wants the Council to compensate her for its failings, including for time and trouble she experienced.

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) 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) 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…”.

How I considered this complaint

I considered information provided by Mrs X.

I considered the Ombudsman’s Assessment Code.

My assessment

The 12-month period runs from the day the person affected had notice of the matters alleged in the complaint i.e. the actions complained about.

We will not investigate Mrs X’s complaint. The complaint relates to matters that took place more than 12 months ago. It was reasonable to expect Mrs X to have complained to us sooner.

Additionally, Mrs X used her Tribunal appeal right. The matters that Mrs X complained about are inseparable from matters the Tribunal did or could have considered.

Final decision

We will not investigate Mrs X’s complaint because the complaint is late, and she appealed to the SEND Tribunal.

Investigator's decision on behalf of the Ombudsman