Summary: We will not investigate this complaint about the Council’s actions between 2021 and 2023 in deciding the nature of Mrs X’s child’s special educational needs. The Council’s assessment of those needs is not separable from matters where Mrs X exercised her right to appeal to the Special Educational Need and Disability Tribunal. Matters relating to possible delay by the Council in the assessment process before June 2022 are late and there is no good reason to use the discretion available to us to investigate them now.

The complaint

1. Mrs X said the Council failed her child throughout the process for assessing his special educational needs (SEN) and issuing an Education Health and Care (EHC) Plan. She said the Council failed to correctly identify her child’s needs and delayed him receiving the provision he needed.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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.
5. 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)

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How I considered this complaint

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mrs X’s complaint covers the period from June 2021 to January 2023. This is the period between the request for an assessment of the child’s SEN and the Council conceding Mrs X’s appeal to the SEND Tribunal.
9. From June 2022, when the Council issued a final EHC Plan, Mrs X had a right of appeal to the SEND Tribunal against the contents of her child’s EHC Plan. She used that right. That means we cannot legally investigate matters subject to the Tribunal, even if we might otherwise have found fault. Those matters include what provision the Council specified in the Plan, the assessments it did or did not carry out, who it consulted, and the way it arrived at its views. In this case, it also includes whether the child should have started school at age five or in the September after his fifth birthday.
10. We may consider delay in the process, though not any period waiting for an appeal hearing, as long as there is no other limit on our powers. However, the complaint about matters between June 2021 and June 2022 is late, the events being between 17 months and 29 months past when Mrs X complained to us in November 2023. We may consider late matters if there is a good reason why the complainant has not approached us within 12 months of the matters complained of. Sometimes a person is unaware of a matter happening until much later. And complainants can be prevented from complaining in good time. In this case, neither reason is present. Mrs X’s complaint is of matters between June 2021 and June 2022. However, she was aware of any delay by early 2022, when she appealed against the Council’s refusal to assess. She could also have complained sooner, as she complained to the Council in August 2022 about another matter, the refusal to let her child start school a year later than usual.

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Final decision

11. We will not investigate Mrs X’s complaint because:

• She has used her right to appeal to the SEND Tribunal, and matters of assessment, consultations, and decisions by the Council are not separable from the nature of the child’s SEN, which was for the Tribunal to decide; and
• Matters before June 2022, when the Council issued the final EHC Plan appealed against, are late, and there is no good reason to use the discretion available to us to investigate them now.

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Investigator's decision on behalf of the Ombudsman