The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint about the Council naming a mainstream school for her daughter, Y’s. It is appropriate for Miss X to appeal to the Tribunal about that. The Council offered to pay her £400 to recognise its delay in finalising Y’s annual review and its poor communication, which is appropriate.
The complaint
Ms X complained about the Council’s handling of her daughter, Y’s Education Health and Care (EHC) Plan. In particular, she complained its delay in finalising an annual review meant there was no place available at a special school so it named a mainstream school that cannot meet Y’s needs.
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) The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), 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.
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 further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by Ms X.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms X’s daughter, Y, has an EHC Plan and is due to move to secondary school in September 2024.
Ms X complained the Council delayed finalising an annual review due to be held in October 2022. In its complaint response, the Council accepted there was delay. However, Ms X did not complain to us about this until April 2024, which is more than 12 months after she was aware there was a delay. I have seen no evidence to show she could not have complained to us sooner.
Her complaint to us is that this caused a delay in the Council’s panel considering whether a special school place was appropriate for Y when she moved to secondary school. The law says councils must finalise a child’s plan by 15 February in the year they transition to secondary school. In this case, the Council finalised the EHC plan, and its panel considered a placement by that date.
Its panel agreed a special school was appropriate for Y but there were no places available at her parent’s preferred school. It therefore named a mainstream school for Y. Ms X has the right to appeal this decision to the SEND Tribunal and it is appropriate for her to do so. The Ombudsman cannot say which school is suitable for Y, nor direct the Council to name a specific school in Y’s EHC Plan.
In its complaint response, the Council said Y would not have got a place at her parents preferred special school even if there had not been a delay in finalising the annual review. It is unlikely we would be able to establish otherwise. In any case, the Council’s decision to name the mainstream school has a right of appeal to the SEND Tribunal and we cannot investigate any matter that is closely related to an appeal.
The Council has accepted delay in finalising the annual review and some poor communication. It offered to pay Ms X £400 to recognise the uncertainty and avoidable time and trouble caused. This was appropriate. Further investigation by us is unlikely to lead to a different outcome. Therefore, we will not investigate further.
Final decision
We will not investigate Ms X’s complaint because it is appropriate for her to appeal to the SEBD Tribunal in relation to the placement named, and the Council has made an appropriate offer to recognise the injustice caused by its delay and poor communication.
Investigator's decision on behalf of the Ombudsman