Summary: Miss X complained the Council failed to provide her child, F with an education or provision in their Education, Health and Care Plan since 2022. We ended this investigation because part of it occurred too long ago and the remaining period falls outside of our jurisdiction because Miss X had a right of appeal to the SEND Tribunal which was reasonable for her to have used.

The complaint

1. Miss X complained the Council has failed to provide her child, F, with a suitable education or the provision in their Education, Health and Care (EHC) Plan since they stopped attending school due to health reasons in 2022.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully.
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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).

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How I considered this complaint

6. I spoke to Miss X about her complaint and considered information she provided.
7. I considered information from the Council.
8. Miss X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

EHC Plans and appeal rights

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
10. 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.
11. There is an appeal right to the SEND Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in the child or young person’s EHC Plan.
12. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

What happened

13. Miss X has a child, F, who in 2022 attended a mainstream school. Miss X said F struggled at school during due to anxiety and unmet needs. F stopped attending school in May 2022.
14. Miss X had applied for an EHC Plan for F and the Council issued F’s final Plan in October 2022, naming School 1 as F’s placement. The Council explained Miss X had a right of appeal to the SEND Tribunal if she was unhappy with the Plan.
15. In November 2022 Miss X complained to the Council. She complained School 1 could not meet F’s needs and F was not attending or receiving any education due to anxiety. The Council responded to Miss X in January 2023 and said F remained on roll at School 1 which is where the Council expected them to attend. The Council said School 1 was named in F’s EHC Plan and reminded Miss X that she had a right of appeal if she was unhappy with this.
16. In October 2023 the Council held an annual review of F’s EHC Plan. School 1 did not raise any issues around meeting F’s needs. The Council issued F’s EHC Plan following the review with minor changes and again named School 1. The accompanying letter informed Miss X of her right of appeal to the SEND tribunal.
17. Miss X complained to us in November 2023 about the Council’s failure to provide F with any education since May 2022.

My findings

18. F stopped attending School 1 in May 2022 and remained out of school up to the point the Council issued the final EHC Plan in October 2022. Miss X did not complain to us about a lack of education until November 2023, over twelve months later. Therefore, this period of time is late. It was reasonable for Miss X to have complained to us much earlier, so I have not exercised my choice (discretion) to investigate.
19. The remaining period of Miss X’s complaint between October 2022 and November 2023 falls outside our jurisdiction so I cannot investigate it. The Council issued F’s final EHC Plan in October 2022 and Miss X does not consider the named school, School 1 is suitable. Miss X had a right of appeal against the decision to name School 1 and the Council reminded her of this in its complaint response to her in January 2023. It was reasonable for Miss X to have used that right if she wished to challenge the named placement in the EHC Plan.
20. The courts have confirmed that we cannot look at the consequences of a council’s decision where the decision itself has been, or could be, the subject of an appeal. That exclusion applies here because School 1 was available to F even though they did not access it. So, we cannot provide a remedy for any missed education or provision from the point the Council issued the EHC Plan.

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Final decision

21. I ended this investigation as part of it is late and the remaining part falls outside of our jurisdiction.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman