The Ombudsman's final decision
Summary: We will not investigate these complaints that the Council failed to provide full-time education for the complainant’s children. The complaints about the period before the Education Health and Care Plans were issued are late and there are no grounds to consider them now. We cannot consider the complaints about matters after the Education Health and Care Plans were issued because the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).
The complaints
The complainant, Ms X, complains that the Council has failed to ensure the provision of full-time education for her sons between September 2021 and July 2023.
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 provider 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 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.
The courts have established that if someone has appealed to the SEND Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
How I considered these complaints I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms X has two sons, who I will refer to as Child A and Child B. Both have special educational needs and an Education Health and Care Plan (EHCP). She complains that the Council failed in its duty to provide both children with full-time education between September 2021 and July 2023.
Ms X applied for an EHCP for Child A, which was issued in November 2021, and for Child B, which was issued in January 2022. Ms X appealed to the SEND Tribunal about the content of both EHCPs. She complains that during the appeal process, which did not conclude until September 2023, the Council failed to take action to make full-time provision for the children.
The Ombudsman will not investigate Ms X’s complaints. Her complaints about the periods before the children’s EHCPs were issued are late. Late complaints are those where someone has waited more than 12 months before coming to the Ombudsman. The EHCPs were issued in December 2021 and January 2022. The complaints about the earlier periods are late and there are no grounds to consider them now.
At the point at which the EHCPs were issued, Ms X’s right to appeal to the SEND Tribunal was engaged. The fact that she used that right in both cases places the matters outside our jurisdiction by law. This is because the reason for the part-time provision about which she is complained is bound up with the matters which were, or could have been, the subject of the appeal. There is no discretion available to the Ombudsman which would allow us to investigate these matters.
Final decision
We will not investigate Ms X’s complaints. The complaints about the period before the EHCPs were issued are late and there are no grounds to consider them now. We cannot consider the complaints about matters after the EHCPs were issued because Ms X has used her right to appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman