The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint about the Council’s failure to provide education and the support needed to meet her child’s special educational needs. Part of the complaint is late. We cannot consider the other parts as the SEND Tribunal has considered or could have considered the matters raised as part of its proceedings.
The complaint
Ms X complains the Council failed to provide her child with education between 2020 and 2021 and has not met their special educational needs. She says her child has missed out on education and she has had to stop work and pay for educational resources which has caused financial loss. She wants the Council to compensate her for her child’s lost education, resources she has purchased, and costs incurred during the tribunal process.
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 courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916) 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.
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
We will not investigate this complaint for the reasons set out below.
Ms X complains the Council failed to provide her child with education between September 2020 and June 2021. She also complains about delay in the Education, Health and Care (EHC) needs assessment process. She says she first requested a needs assessment in March 2020 but the Council did not issue a final EHC Plan until December 2022. These parts of the complaint are late. I can see no good reason why Ms X could not have approached us sooner about these matters and so we will not investigate now.
Ms X also complains the Council did not pay for alternative educational provisions, cut her personal budget for educational resources and behaved poorly in the run up to a SEND Tribunal hearing in 2023. We cannot investigate these complaints. Ms X appealed to the SEND Tribunal about the content of the final EHC Plan and the matters complained about have already been considered, or could have been considered, as part of the Tribunal hearing. We cannot investigate even if Ms X considers the Tribunal did not provide a full remedy for any injustice caused.
Ms X also complains about costs she incurred during the Tribunal process. She says if the Council had appropriately considered her evidence in the first place, the Tribunal would not have been needed and she would not have incurred the costs. We cannot investigate any action which would overlap with the role of the Tribunal. The Tribunal has wide ranging powers, including the ability to award costs to either party as it sees fit during the tribunal process. Ms X could have asked the Tribunal to consider an award for costs during the Tribunal process, so we cannot investigate this. We also cannot investigate actions or decisions taken by the SEND Tribunal.
Final decision
We will not investigate Ms X’s complaint. Part of the complaint is late and we cannot consider the other parts as the SEND Tribunal has considered or could have considered the other parts of the complaint as part of its proceedings.
Investigator's decision on behalf of the Ombudsman