The Ombudsman's final decision
Summary: We will not investigate this complaint about the education provision for Ms X’s son. Much of the complaint is late and it was reasonable for Ms X to appeal to the First-tier Tribunal (Special Educational Needs and Disability. Even if we did investigate, it is unlikely we would achieve the outcome Ms X wants.
The complaint
The complainant, whom I shall refer to as Ms X, complained the Council failed to provide her son (Y) with a suitable education when he stopped attending school at the end of the 2021/22 academic year. Ms X says the Council failed to properly monitor the alternative provision her son received from September 2022. Ms X also complained the Council delayed issuing her son with an Education Health and Care Plan (EHC Plan). Ms X is unhappy the Council failed to name her preferred learning provider in Y’s EHC Plan. Ms X is unhappy with the financial remedy the Council has offered. Ms Y supported Ms X with her complaint to the Council and Ombudsman.
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 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) 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: we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, or (Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
What I found
The Council’s complaint response In response to Ms X’s complaint the Council said: After Y stopped attending school it commissioned a learning provider from September 2022.
Its monitoring of Y’s provision from September 2022 could have been better.
Some of Y’s tuition, including science, was not in place from February 2023 as it should have been.
The Council should have issued Y’s final EHC Plan by 13 February 2023. The Council issued the EHC Plan on 04 April 2023. It was therefore seven weeks late.
The Council could not name Ms X’s preferred learning provider in Y’s EHC Plan as it was not a Department for Education registered school.
There was an interim review of Y’s EHC Plan at the end of 2023. The Council accepted it had not sent Ms X all the documents. It said some of its communication with Ms X could have been clearer. It again explained why it had not named Ms X’s preferred learning provider in the EHC Plan.
The Council recognised Y had missed some provision during 2022/23 and offered a payment of £2880. It offered a further £500 for distress and uncertainty. The Council referred to service improvements it had made for when a child could not attend school.
Assessment We will not start an investigation into Ms X’s complaint. The reasons for this are as follows.
The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem – not twelve months of receiving a response from a council. Ms X’s complaint about what happened in the 2022/23 academic year is therefore late. This includes the provision for Y and when the Council issued his EHC Plan. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so. I do not consider that to be the case here. I see no reason Ms X could not have complained much earlier and so the exception at paragraph 3 applies to her complaint.
Ms X is unhappy with the content of Y’s EHC Plan, and that the Council did not name her preferred learning provider. Parents unhappy with the content of an EHC Plan can appeal to the SEND Tribunal. We expect parents to use this right unless it is unreasonable for them to do so. The Tribunal can order a council to change the content of an EHC Plan. We have no powers to do this. It was therefore reasonable for Ms X to use her appeal rights.
Ms X is also unhappy with the Council’s proposed remedy and has asked for a payment of £7000 for missed provision and £1000 for distress and frustration. But even without the reasons above why we will not consider her complaint, an investigation would not achieve Ms X’s desired outcome. Given that Y did receive some education for the 2022/23 academic year, we would not recommend the payment Ms X wants. Given the Council has also offered £500 for frustration and distress, it is unlikely that an investigation would achieve anything more.
Final decision
We will not investigate Ms X’s complaint because much of it is late, and it was reasonable for Ms X to use her appeal rights. Even if we did investigate, it is unlikely we would achieve what Ms X wants.
Investigator's decision on behalf of the Ombudsman