Summary: On behalf of her child, X, Mrs Y complains the Council failed to properly investigate her complaint that X’s educational and social care needs were unmet over a prolonged period. We found the Council should provide further financial remedies to recognise the impact of missed education provision between November 2021 and April 2022, and for failing to ensure Mrs Y had access to documents relevant to X’s educational arrangements. We found the Council at fault for restricting the role of X’s advocate during the Review Panel hearing. However, this did not cause Mrs Y or X a significant injustice. We have recommended the Council act to improve its services. We did not find the Council at fault for how it considered Mrs Y’s complaints about social care provision, or the suitability of a tutor. There are parts of Mrs Y’s complaint we cannot or will not investigate. We explain why in our decision statement.

The complaint

1. On behalf of her child, X, Mrs Y complains the Council failed to properly investigate her complaints that X’s educational and social care needs were unmet over a prolonged period.
2. Mrs Y says:
1. The Council did not conduct parts of the statutory complaints procedure properly. Mrs Y says the Investigating Officer did not have full access to relevant records. She also says the Review Panel restricted her advocate’s participation in the hearing and did not consider information relevant to her complaint. She says these issues affected the outcomes on parts of her complaint.
2. The Council did not properly consider her complaints about a failure to provide special educational provision since October 2020.
3. The Council’s remedy does not adequately address the injustice caused.
3. On X’s behalf, Mrs Y says the Council’s faults have caused avoidable frustration and significant distress. She says the faults have negatively affected X’s educational attainment and wellbeing.

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The Ombudsman’s role and powers

4. 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 not enough evidence of fault to justify investigating;
• we could not add to any previous investigation by the organisation;
• we cannot achieve the outcome someone wants;
• there is another body better placed to consider this complaint; or
• there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
8. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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What I have and have not investigated

Scope of investigation

9. Mrs Y’s complaint has been through all stages of the children’s statutory complaints procedure. Details about this procedure, and the Ombudsman’s approach to such complaints, are set out in paragraphs 20-27.
10. I have investigated how the Council considered Mrs Y’s complaint. I have not reinvestigated the substantive facts again. I have considered whether the Council has followed the correct procedures, applied the correct tests, and appropriately remedied any injustice it identified.

Time

11. The law says we cannot investigate late complaints unless there are good reasons, as set out in paragraph 5. A good reason is one that prevented the complainant from bringing the matter to the Ombudsman within 12 months of the alleged fault happening.
12. Parts of Mrs Y’s complaint relates to matters that occurred more than 12 months ago, with Mrs Y alleging the Council failed to act in 2009, and from 2015 to 2020. The Council considered these matters as part of the complaints procedure, while noting that they were late complaints. However, the Ombudsman would not consider such matters now. This is because, given the clear passage of time, we are unlikely to be able to reach sound findings on any fault or subsequent injustice. Further, I have not identified any good reason Mrs Y could not have brought these matters to the Ombudsman sooner.
13. Because the Ombudsman would not consider the substantive late complaints, we would also not consider how the Council investigated these matters. It is not a proportionate use of the Ombudsman’s resources to investigate complaints about complaints procedures, when we are not looking at the substance of the complaint itself.

Schools

14. When bringing her complaint to the Ombudsman, Mrs Y raised concerns about the actions and conduct of school staff, with an alleged failure to address X’s social and educational needs over several years. The Ombudsman cannot investigate most complaints about what happens in schools, as the law prevents us from doing so. This includes complaints about school staff conduct, general school management, or how a school handled bullying. We can investigate complaints about a failure to secure the educational provision in Section F of a young person’s EHC Plan, when a school is acting on behalf of a council.

Information requests

15. Part of Mrs Y’s complaint to the Council was that it failed to fully disclose all information requested as part of a subject access request (SAR). The Information Commissioner’s Office (ICO) is better placed to consider complaints about such matters.

Health matters

16. Mrs Y asked the Ombudsman to consider whether we should jointly investigate the complaint with the Parliamentary and Health Services Ombudsman (PHSO). The Ombudsmen reviewed the complaint and decided not to undertake a joint investigation, as the matters complained of were clearly separable.

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How I considered this complaint

17. I discussed the complaint with Mrs Y and considered information she provided.
18. I considered information the Council provided in response to my enquiries.
19. Both Mrs Y, X and the Council were able to comment on a draft version of this decision. I considered any comments I received before making a final decision.

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Relevant legislation, guidance and policy

Statutory complaints procedure - timescales

20. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’ (referred to in this statement as “the Statutory Guidance”), explains councils’ responsibilities in more detail. We also published practitioner guidance on the procedures, setting out our expectations.
21. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
22. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
23. Following the investigation, a senior manager (the Adjudicating Officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The Adjudicating Officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
24. The whole stage two process should be completed within 25 working days, but guidance allows an extension for up to 65 working days where required.
25. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.

The Ombudsman’s approach to complaints involving the statutory procedure

26. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
27. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay. We may also consider whether the Council has remedied all the injustice identified.

Education, Health and Care (EHC) Plans

28. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
29. The EHC Plan is set out in sections which include: 
• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 
30. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Children in Need Plans

31. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.

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What I found

Summary of key events

Original complaint

32. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
33. On 9 May 2022, Mrs Y complained to the Council. The Council said this complaint was about the actions of a social worker assigned to X, who had failed to seek funding that would allow Mrs Y to employ an enabler for X in 2021. An enabler is a role that provides general support and acts to promote an individual’s welfare.
34. The Council responded on 14 July 2022. The Council agreed there had been no request for funding, which it said was due to an error by a social worker. It apologised and said it would:
1. Identify wider learning from the complaint and share this with officers.
2. Pay Mrs Y £3600, based on six hours’ enabling a week, for a six-month period, at a cost of £150 per week.
3. Pay Mrs Y a further £200 in acknowledgement of Mrs Y’s time and trouble.
35. Mrs Y escalated her complaint to the second stage of the children’s statutory complaints procedure on 15 July 2022. In late July 2022, the Council appointed an Investigating Officer (IO) and Independent Person (IP). The IO and IP met with Mrs Y in early August 2022, agreeing the specific matters they would investigate. There were eight points of complaint in total.
36. Mrs Y sought:
1. An apology and acknowledgement of the Council’s failings. Mrs Y said this had set back X’s education and prospects. She said these failings had also affected her own wellbeing and employment.
2. Changes in the Council’s procedures and practices, to make sure failings in X’s case did not affect others.
3. Compensation.
4. Backdated funds for an enabler, as Mrs Y said the Council had not addressed the period from April 2021 to September 2022.
5. Any other recommendations identified by the IO and IP.

Summary of stage two findings and recommendations

37. The IO delivered a report of their findings on 20 December 2022. On 26 January 2023, the Council wrote to Mrs Y with a copy of the report and its response to the findings and recommendations.
38. Paragraphs 11 to 16 set out limits on what the Ombudsman can consider. I have not considered those parts of Mrs Y’s complaint that are late, or outside of our jurisdiction. I have not therefore summarised those complaints here. Instead, I have summarised the complaints and findings that are relevant to this investigation, as follows:
1. Mrs Y said the Council had failed to provide her with documents she should have had, preventing her from fully participating in the planning for X’s social and educational needs. The IO said this complaint should be upheld. They said there was no evidence showing the Council had provided Mrs Y with documents she was entitled to receive, specifying assessments and CiN review meeting notes. The IO also said there was evidence the Council had shared a draft of X’s latest EHC Plan, but this had not always happened. The Council agreed with the IO’s conclusions and apologised to Mrs Y.
2. Mrs Y said the Council provided a tutor inappropriate for X’s needs between January and June 2021, during X’s final year of compulsory education. The IO recommended this be partially upheld. The IO said the Council did not commission the tutor, with X’s school independently deciding to do so when X was not engaging with other measures in place. The IO said the tutor was not successful, but stated the provision was appropriate. The Council said it had decided, in consultation with an Educational Psychologist, that there should be no additional provision put in place. It said X’s school had worked independently with Mrs Y to try and secure provision in Section F of X’s EHC Plan. The Council said X’s school put the tutor in place without the Council’s agreement or support, so it could not take responsibility for any failings in implementation. It made no finding on this complaint.
3. The Council had failed to ensure X’s school secured the provision set out in X’s EHC Plan at X’s post-16 education placement. The IO said this should be partially upheld. They said the evidence available showed the Council had sought to ensure X’s needs had been met, but this had not always been possible, despite the Council’s efforts and those of X’s school. The IO said there was also evidence to show the Council had not always acted on requests from Mrs Y and the Educational Psychologist. The Council agreed with these findings and partially upheld the complaint. The Council apologised to Mrs Y.
4. Mrs Y said the Council had failed to meet X’s needs, as set out in the assessment in the Child in Need (CiN) Plan. The IO recommended this complaint be upheld. The IO said there had been a failure to undertake CiN meetings after April 2021, which led to a lack of planning and coordination between the professionals involved. The IO said this was compounded by X’s case being closed to the Council’s social care services for an undetermined period. The IO found there was evidence of a failure to review the CiN plans and meet X’s needs. The Council said there were some inaccuracies in the IO’s findings, but nonetheless upheld the complaint.
39. The IO recommended the Council issue a series of apologies for the failings identified. The Council did so, where it agreed with the IO’s findings.

Summary of stage three findings and recommendations

40. On 15 February 2023, Mrs Y asked the Council to escalate her complaint to stage three of the children’s statutory complaints procedure. The Council convened a Review Panel, which heard the complaint on 30 March 2023.
41. The Panel considered all relevant documents and heard from those involved in the complaint and the stage two investigation, including Mrs Y and the IO. The Panel issued its report and findings on 11 April 2023. The Council issued its final response to Mrs Y on 4 May 2023, ending the statutory complaints procedure.
42. In summary, the Review Panel made no changes to the findings of the Council at stage two of the procedure. The Panel recommended the Council pay a further £300, in addition to that awarded at stage one of the complaints procedure. It also made further recommendations for service improvements. In its final response letter, the Council accepted all of the Panel’s recommendations.
43. Mrs Y brought her complaint to the Ombudsman.

Analysis

Timeliness of the procedure

44. The timescales for the statutory complaints procedure are set out in paragraphs 21-25.
45. The Council took 46 working days to respond to Mrs Y’s complaint at stage one of the procedure. This was a delay of 26 working days.
46. Councils have a maximum of 65 working days to complete the stage two investigation procedure, from the point the complainant seeks escalation to when the Council issues its stage two complaint response. The Council took 135 working days to complete stage two of the complaints procedure. This was a delay of 70 working days.
47. The Council convened the Review Panel in 31 working days and issued its final response 23 days after the Panel hearing. This was a delay of 4 working days across stage three of the complaints procedure.
48. There was therefore a cumulative delay of 100 working days in the Council completing the statutory complaints procedure. I have found the Council at fault for this delay.
49. I believe this delay caused Mrs Y and X an injustice. Mrs Y and X were put to unnecessary time and trouble in pursuit of an outcome to their complaint. At the conclusion of the complaints procedure, the Review Panel recommended a further payment of £300 to Mrs Y. I consider this payment effectively recognises the Council’s delay in completing the procedure.

Conduct of complaints procedure - Representative

50. Mrs Y said the Council stopped her advocate from properly representing her at panel stage. She said this affected how the Panel considered her complaint, potentially impacting the outcome.
51. Panel notes show Mrs Y attended the hearing with her mother (X’s grandmother) and a representative from the local Special Educational Needs and Disabilities Information Advice Service (SENDIASS), there to represent X. At the beginning of the hearing, Mrs Y asked if the SENDIASS Representative could set out the complaint. The Chair of the Review Panel told Mrs Y this would not be appropriate. The Panel said the IO had investigated the complaint on the basis it was Mrs Y’s complaint, not X’s. The Panel asked Mrs Y to set out the complaint instead.
52. Mrs Y told me this was important, because she had taken advice from the SENDIASS Representative on what to include in the complaint submissions. Mrs Y had understood the Representative would outline the complaint to the Panel during the hearing. The notes of the hearing show Mrs Y referencing these prior discussions with the Representative.
53. Paragraph 3.15.1 of the Statutory Guidance says:

“The complainant has a right to attend the Panel and should be assisted in attending as appropriate. The complainant should also be informed of his entitlement to be accompanied by another person and for this person to speak on his behalf.”

54. I asked the Council about the decision to limit the SENDIASS Representative’s role in the hearing. The Council told me:
• The Panel believed Mrs Y could represent herself fully. Further, Mrs Y’s mother was also present to provide some added support and clarification.
• The SENDIASS Representative confirmed she was acting as the advocate for X. The Council said the Panel confirmed with the IO that the complaint was not made by, or on behalf of, X. The Council said the Panel believed there would be a conflict of interest in a child’s advocate representing the child’s parent at a hearing.
55. That the Panel believed Mrs Y could fully represent herself is an irrelevant consideration. The Statutory Guidance says somebody attending a hearing has the right to be accompanied by another person, who can speak on their behalf if they wish. This right applies whether or not the complainant can represent themselves.
56. Whether there is a conflict of interest, or whether Mrs Y was a suitable person to complain about the education and care given to X, is a valid point the Council must consider. However, there is nothing in the contemporaneous hearing notes, nor in the subsequent report, to show the Panel had concerns about a conflict of interest. Further, there is nothing documented in the complaint paperwork to suggest the Council had any concerns Mrs Y was unsuitable to bring a complaint about X’s care and education, and the impact on X. Were that the case, the Council could – and should – have ensured X had clear and separate representation throughout the procedure, and made an effort to seek X’s views.
57. The notes show the Panel limited the Representative’s role in proceedings because it believed the complaint was Mrs Y’s, not X’s. The implication is X would have had to make a separate complaint about the same matters, which seems particularly onerous given X’s known vulnerabilities. Further, Mrs Y has provided correspondence to me that suggests she made clear at the outset the complaint submitted was from both her and X. The Panel also had advance notice Mrs Y would be bringing a representative to the hearing.
58. I have found the Council acted with fault in its approach in this case, by enforcing a restriction at short notice for questionable reasons, in a manner which contravenes the Statutory Guidance.
59. However, I cannot say this caused a significant injustice to Mrs Y, or X. While the Representative’s role was limited, it was not restricted entirely. The Representative was able to contribute to the hearing, offering information and clarification. The Panel had access to the IO’s report and all associated documentation. The IO, IP and Adjudicating Officer were all present at the hearing, and the Panel was able to seek information and clarification from them. The notes also show that Mrs Y did effectively contribute to proceedings throughout and that she was accompanied by X’s grandmother, whom I understand also contributed. I therefore believe the Panel had access to the information it needed to make a decision.
60. While this fault did not cause a significant injustice to Mrs Y or X, it is possible that restricting representation in this way could cause an injustice for others in the future. I have recommended the Council act to improve its services to prevent this.

Education findings

61. The Council issued X with an EHC Plan in October 2020. The Council made no finding for a complaint about a tutor assigned to X between January and June 2021, during X’s final year of compulsory education. It said this was a decision X’s school had taken independently, without agreement or request from the Council. It said it could take no responsibility for the success or suitability of this arrangement. The Review Panel agreed with this finding on the same basis.
62. This is a conclusion the Council is entitled to reach and I have seen no suggestion of fault in how the Council considered this part of the complaint. I have not found the Council at fault for reaching this conclusion.
63. The Council upheld a complaint that it had failed to share with Mrs Y documents that would have enabled her to engage fully with X’s educational planning. The Council also partially upheld a complaint it had failed to ensure X received the special education provision at X’s post-16 education placement. This was between November 2021 and April 2022, when the placement ended.
64. The Council accepted it failed to properly engage with Mrs Y, causing avoidable distress and uncertainty. It also accepted it failed to ensure X received the special educational provision to which he was entitled between November 2021 and April 2022. However, the Council did not provide an effective remedy for these faults. I have recommended the Council do so.

Child in Need

65. The Council upheld the complaint that it had failed to meet X’s identified needs, as set out in the needs assessments in the CiN plans. The Council accepted these faults and paid Mrs Y £3600, equivalent to the cost of an enabling service for six months. It also paid Mrs Y a further £200 for time and trouble in respect of this part of the complaint. Mrs Y said the Council had not addressed the full period X had been without an enabler.
66. I asked the Council how it calculated this figure. It told me it based this figure on the assumption the enabling service would have been in place for six months, before being reviewed to decide if it should continue. The Council said it could not say if the service would have continued beyond six months, as this would have depended on several factors, including whether the enabling service had been effective.
67. I appreciate Mrs Y believes the enabling service would have continued past the six months for which the Council backdated payment, given it is in place again now. However, I note the Council’s explanation as to why this is uncertain. I believe the Council can demonstrate it considered the facts of the case before applying this remedy, and the remedy itself is proportionate to the injustice identified. The Council’s remedy is more than the Ombudsman might usually recommend in such cases. The Council also paid £200 in addition to the backdated £3600, which I believe would be sufficient to recognise the injustice arising from the uncertainty over whether there would have been any added care provision. I have not found the Council at fault for how it considered this aspect of the complaint.

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Agreed action

68. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mrs Y and X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Remind relevant staff the Statutory Guidance makes clear a complainant has the right to have an advocate attend a review panel hearing to speak on their behalf, if they wish.
3. Pay X a total of £1800 for the education provision missed between November 2021 and April 2022. This is a figure of £900 for approximately two academic terms. I have had regard for the Ombudsman’s Guidance on Remedies when recommending this figure. In particular, I have considered that X was a young person with an EHC Plan, who did not receive the educational provision to which they were entitled. I have also considered the Council accepted it failed to ensure this provision was in place.
4. Pay Mrs Y £200, for the avoidable distress and frustration caused by the Council failing to ensure she was provided with the relevant documentation, frustrating her ability to engage in planning X’s educational arrangements.
69. The Council should provide us with evidence it has complied with the above actions.

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Final decision

70. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman