Summary: Mr X complained about the actions of the Council, NHS and schools involved with his disabled child, W. The Council was at fault for delay in responding to Mr X’s complaint. This caused him avoidable frustration. To remedy this, the Council will pay Mr X £250. The Council’s complaint response was suitably independent and thorough, so I have not investigated the substantive matters Mr X complained to the Ombudsman about.

The complaint

1. Mr X has a disabled child, W. Mr X complained about the actions of the Council, W’s schools and the NHS in relation to W, dating back to 2013. Mr X’s concerns included that:
1. he believed there was an incident at W’s previous school where staff significantly mistreated them. Mr X said the Council was aware of this but did not act on it;
2. W’s current school restrains them when they are acting dangerously, against his wishes;
3. W’s current school does not keep them safe from other children;
4. the Council fostered animosity between him and W’s mother in relation to W’s Education, Health and Care (EHC) Plan. Mr X said this led them to pay for private assessment by specialists such as physiotherapists and educational psychologists;
5. the Council took advantage of W’s mother’s language barriers to produce W’s EHC Plan to its satisfaction;
6. the Council removed provision from W’s EHC Plan;
7. the Council deleted his contact details from its computer system;
8. the Council told him he needed W’s mother’s consent to appeal to the Special Educational Needs and Disabilities (SEND) Tribunal;
9. the Council responded to his complaint to it and his complaint to W’s school without his agreement;
10. the Council produced a poor statement of complaint and refused to change it; and
11. the Council took too long to respond to his complaint.
2. Mr X said this had a significant impact on W’s mental and physical wellbeing and was distressing to him. Mr X said he wanted in depth investigation into his concerns and for W’s EHC Plan to be amended. Mr X said he wanted a judicial review of the Council and feels the matters he raised justify criminal investigation.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended).
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
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 provider 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. We cannot investigate the actions of NHS organisations. (Local Government Act 1974, sections 24A and 34B, as amended)
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.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

10. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Corporate complaints procedure

12. The Council has a corporate complaints procedure which considers most complaints. It is a one-stage process, which the Council aims to finish within 20 working days.

The children’s statutory complaints procedure

13. The statutory children’s complaint process was set up to give children and those representing them an opportunity for a thorough independent investigation of their concerns. The Children Act 1989 Representations Procedure (England) Regulations 2006 specify what can be considered using the statutory complaints process. Child protection issues are largely exempt.
14. The statutory process has three stages:
• Stage 1 - local resolution by the council.
• Stage 2 – an investigation by an investigating officer who will prepare a detailed report and findings. The investigation is overseen by an independent person to ensure its impartiality and thoroughness. The council then issues an adjudication letter which sets out its response to the findings.
• Stage 3 – an independent panel to consider their outstanding issues.
15. 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. This is secured through the appointment of an investigating officer and oversight by an independent person. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
16. 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 also 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.
17. The regulations set out people must make their complaints within one year of becoming aware of an issue.

Special educational needs

18. 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. 

What happened

19. This section sets out the key events in this case and is not intended to be a detailed chronology.
20. Mr X complained to W’s school (School A) in late February 2023. In early March, he sent a complaint to the Council which was primarily about its SEN department.
21. In early May, the Council told Mr X it would respond to both of his complaints because of the overlap between them. It explained it had appointed an independent investigating officer to respond to the complaint. It also appointed an independent person to oversee the investigation.
22. The investigating officer contacted Mr X in early July to discuss his statement of complaint.
23. In late-September 2023, Mr X told the Council he had been unwell and needed more time to prepare his statement of complaint. The Council agreed put Mr X’s complaint on hold until he had recovered.
24. The Council contacted Mr X in late-October and he confirmed his agreed statement of complaint in early November 2023. It covered his concerns about School A and the Council.
25. In December 2023, the investigating officer sent the outcome of their investigation into Mr X’s complaint against School A. The Council told the officer they also needed to consider the complaint about its SEN department. The officer apologised and said they had not realised this.
26. The investigating officer completed their consideration of Mr X’s complaint against the SEN department in mid-February 2024. The investigating officer’s reports noted they had considered a large number of documents provided by Mr X, files from School A and the relevant law and guidance such as the local safeguarding partnership’s policies.
27. The independent person’s report noted the investigating officer had full access to the information they needed for the investigation and could speak to the relevant staff. They found the investigating officer’s report to be a truthful account of the evidence they had seen and that the officer’s conclusions were balanced and fair. The independent person agreed with the findings and conclusions of the investigating officer.
28. Mr X made a large number of complaints, including the matters set out in paragraph one (a) to (h). The officer considered each one in turn but did not uphold most of the complaints. Of note, the report said:
• they would not investigate Mr X’s complaints about the NHS;
• Mr X said the Council ‘mishandled’ W’s situation in 2013-2014, including placing W with different unfamiliar families which meant W had to transfer schools and boroughs and therapies were interrupted. The investigating officer concluded the complaint related to actions taken by the children’s social care department and so was outside the remit of the investigation; and
• Mr X said W’s previous school (School B) had seriously mistreated W during an incident in 2016, which he had only recent become aware of. Mr X complained the Council had been aware of the incident at the time but had not acted on it. The report stated the officer had not investigated Mr X’s concerns because they related to a safeguarding issue which may or may not have been raised with the children’s social care department and which he should have raised with the school at the time.
29. The investigating officer recommended the Council consider whether to arrange an independent advocate for Mr X given the issues between him and School A. They also recommended the Council offer Mr X a meeting with a senior manager from its SEN department and a representative from School A to discuss his concerns.
30. In his complaint to the Ombudsman, Mr X said he had raised his concerns about School B’s treatment of W with the Council through “countless phone calls and emails” and had been told it had no evidence of the incident in 2016.

Findings

31. Mr X wants a judicial review of the Council and feels the matters he complained about justify a criminal investigation. The Ombudsman cannot do this. We make decisions on maladministration and service failure only.
32. The Council decided to appoint an independent investigator to respond to Mr X’s complaints. The independent investigation closely resembled a stage two response under the statutory children’s complaints procedure. This ensured adequate external oversight by an independent person. As a result, I have focused on whether there was fault in the Council’s investigation that calls its findings into question.
33. When Mr X complained to the Council and School A in February and March 2023, the Council decided to respond to both complaints. This was because there was significant overlap between the complaints and responding to both would mean Mr X would receive a joined-up and consistent reply to his concerns. This was not fault. In any case as explained in paragraph six above we cannot investigate complaints about the actions of schools.
34. Mr X says the statement of complaint the Council investigated was poor and it would not change it. However, Mr X agreed the statement of complaint after discussions with the investigating officer between July and November 2023. The Council was not at fault.
35. The Council was at fault for delay in responding to Mr X’s complaints. It did not tell Mr X it was appointing an independent investigating officer until May 2023, two months after he first complained. It took a further two months for the officer to contact Mr X. After Mr X confirmed his statement of complaint there was another delay of two months because the investigating officer had not realised they needed to consider Mr X’s complaint about the Council and School A. While the investigating officer was independent of the Council, they were acting on its behalf, so the Council is still responsible for their delay. This caused Mr X avoidable frustration.
36. In its complaint response the Council explained it would not consider Mr X’s concerns about the NHS’s involvement with W. This was appropriate. It is open to Mr X to complain to the NHS about its actions and he may then take his concerns to the Parliamentary and Health Service Ombudsman if he remains dissatisfied.
37. The Council refused to investigate Mr X’s complaint that it had mishandled W’s situation in 2013 and 2014 because it related to the children’s social care department and its investigation was into the actions of the SEN department. This rationale was flawed and was fault. The Council must use the statutory children’s complaints procedure for matters that come under its remit, including Mr X’s complaint about the actions of the children’s social care department in 2013-2014. In any case we expect councils to respond to complaints in a coordinated, whole organisation way that does not require complainants to make multiple complaints to different departments.
38. However, this did not cause Mr X a significant personal injustice. This is because the statutory procedure requires people to complain about matters within one year of events occurring. Mr X complained ten years later so it is likely that but for the fault, the Council would have still declined, and been entitled to decline to consider his concerns.
39. The Council was also at fault in how it decided it would not consider Mr X’s complaint that the Council did not tell him about an incident at School B in 2016. It said it would not investigate because Mr X should have complained to School B at the time, and it was not clear if the Council had been made aware of the incident. However, Mr X was clear that he thought the Council had been aware of the incident at the time and that he had not found out until recently.
40. The fault did not cause Mr X a significant personal injustice because the Council confirmed to him in previous correspondence that it had no record of such an event. Given this, and the length of time that had passed since the alleged incident, it is probable the Council would have declined to investigate because further inquiry would have been unlikely to result in a different outcome.
41. The rest of the Council’s consideration of Mr X’s complaint was carried out without fault. The investigation was appropriately thorough and in depth and addressed each of Mr X’s complaints in turn. The officer had access to relevant information, their findings stemmed logically from the evidence and their recommendations were sensible. The independent person did not raise any concerns with the investigating officer’s investigation or report. I have seen no grounds to question the investigation’s outcome, so I have not reinvestigated Mr X’s complaint.

Agreed action

42. Within one month of the date of my final decision, the Council will pay Mr X £250 in recognition of the frustration he experienced due to the delay in responding to his complaint.
43. The Council will provide us with evidence it has complied with the above action.

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Final decision

44. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman