The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s actions in issuing an Education Health and Care Plan and not offering alternative educational provision for Mrs X’s child. The matters complained of are not separable from matters subject to an appeal to a Tribunal, and a legal ruling prevents us considering whether alternative educational provision should have been made for the child.
The complaint
Mrs X complained of fault in the way the Council assessed her child’s special educational needs (SEN), including naming a school without asking her. She complained it also failed to offer alternative educational provision when her child was out of school, but instead wrongly made attendance visits, and breached her data security.
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 held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999); R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407 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. We do not start or continue an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Parts of Mrs X’s complaint are late. The correspondence Mrs X provided shows she complained to the Council in February 2024. Matters concerning her child’s educational provision before 2023 and the Council’s issue of an Education Health and Care (EHC) Plan in February 2023 would have been known to her more than a year before she approached us. As she engaged in mediation with the Council and appealed against the EHC Plan, I take the view she could have complained to us sooner about matters pre-dating February 2023 and there is no good reason to exercise discretion to consider these late matters.
Mrs X’s appeal to the SEND Tribunal also affects our ability to consider the complaint from February 2023 onwards, as well as matters before it. Mrs X’s right to appeal to the SEND Tribunal arose in February 2023, a right she used. The legal judgement referred to above prevents us considering what education the Council offered, either in the EHC Plan, or as alternative educational provision, until after the appeal hearing. Mrs X’s correspondence indicates she succeeded by appealing to the SEND Tribunal in gaining the provision she wanted, so there is no issue to address after that. How the Council arrived at the content of the Plan Mrs X appealed against is closely connected with that content and we cannot consider it, even if it was not also a late matter. The Council’s actions in attempting to secure the child’s school attendance are also directly related to the suitability or otherwise of the education offered in the EHC Plan.
The only remaining matter that appears separable from the SEND appeal is the alleged data breach. However, the Information Commissioner’s Office would be better placed to consider it. This is because it has powers to determine a breach and to impose penalties that we lack.
Investigator's decision on behalf of the Ombudsman