Summary: X complained about how the Council dealt with their complaints concerning children’s and educational services for C. We found there was avoidable delay by the Council both in assessing C’s educational needs and issuing a final Education, Health and Care Plan and in its children’s statutory complaints procedure. The delays caused X and C avoidable distress and uncertainty, which the Council agreed to put right by sending them a written apology and making a symbolic financial payment.

The complaint

1. X complained about the outcome of the Council’s investigation into their complaints under the statutory children’s complaints procedure because:

• of its continuing delay in sending their child (a young person called ‘C’ in this statement) a written apology;
• it refused to fund support services C might need;
• its apology letter included an error and misspelt C’s name; and
• at stage 3, it signposted them to its corporate complaints procedure to put right its admitted delay in completing C’s needs assessment and issuing a final Education, Health and Care Plan (EHC Plan).

2. X said dealing with the Council’s inaction and delay was time consuming and caused emotional distress and avoidable difficulties for them and their family. X also said C remained without the necessary support at school.
3. X wanted the Council to:

• send the agreed apology to C and provide funding for therapeutic support;
• send a further apology to C for its delay in completing the needs assessment and issuing an EHC Plan; and
• recognise the enormous impact of the events complained about on them and their family and on C’s education.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. Where we find fault, we must also consider whether that fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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)

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How I considered this complaint

7. I have:

• considered X’s written complaint and supporting papers;
• talked to X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared Council information about the complaint with X;
• shared a draft of this statement with X and the Council and considered any comments received before making a final decision; and
• 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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What I found

Background

Complaint procedures

8. The law sets out a three-stage procedure (‘the Procedure’) for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’ (‘the Guidance’), explains councils’ responsibilities in more detail. We also published practitioner guidance on the Procedure, setting out our expectations.
9. The first stage of the Procedure is local resolution. 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 oversees the investigation and ensures its independence.
10. 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.
11. 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 issue a final response within 20 working days of the panel hearing.
12. Councils also have a general or corporate complaints procedure. This procedure applies to complaints not covered by any statutory or specialist complaint procedure. The Council has a three stage general complaints procedure (‘the Corporate Procedure’). At stage 1, the responsible person or officer will try to put matters right within 6 working days. If a complainant is unhappy with the stage 1 response, they may ask that a senior manager investigates the complaint at stage 2. If still unhappy, a complainant may ask for the Council’s Corporate Customer Standards Officer (CCSO) to review the complaint at stage 3. The Council aims to reply to stage 2 complaints within 15 working days and, after the CCSO review, stage 3 complaints within 20 working days.
13. Section 7 of the Guidance covers the relationship of the Procedure with other procedures. And paragraph 7.8 is about ‘building a seamless service with other council complaint procedures’. Paragraph 7.8.1 says councils may wish to consider if there are advantages in dealing with all a complainant’s complaints as a single investigation.

Special educational needs

14. A child or young person with special educational needs may have an 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 Special Educational Needs and Disability Tribunal or the council can do this. 
15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the Special Educational Needs and Disability (SEND) Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice. 
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.

What happened

16. X complained about the service they and C had received from both the Council’s Children’s and Education officers, including delay in issuing C’s final EHC Plan. The Council recognised the Procedure applied only to that part of the complaint about its Children’s Services. The Corporate Procedure applied to the complaints about C’s education and the EHC Plan. The Council considered it would be easier for X to have one contact point and so decided to deal with the whole complaint under the Procedure.
17. X’s complaint progressed to stage 3 of the Procedure. Shortly before the stage three panel meeting, the Council issued C’s final EHC Plan.
18. The panel’s report of the meeting said X came to stage three as they wished to challenge three recommendations made at stage two of the Procedure. Having considered matters, the panel:

• Found the Council had delayed in complying with a stage two recommendation on a complaint about its Children’s Services (‘the Recommendation’). The panel said the Council should both comply with the Recommendation and pay X £250 in recognition of the further injustice arising from that delay. The panel also recommended the Council include timescales or deadlines for action plans and monitor compliance to avoid such delays in the future.
• Did not support X’s request for funding for support services C might need.
• Found extreme and unacceptable delay by the Council in completing C’s EHC Plan. However, the panel said they could not make stage three recommendations about this delay because the Procedure did not cover the EHC complaint. The panel recommended X be signposted to the Corporate Procedure to address the matter.

19. The Council then sent its final complaint response to X (‘the Letter’), accepting the panel’s report and confirming it was following up the Recommendation. C’s name was misspelt throughout the Letter. The Letter also wrongly referred to X.
20. X quickly came to the Ombudsman complaining about the errors in the Letter. X also complained about the Council’s continuing failure to comply with the Recommendation and the panel’s decisions about funding and the EHC Plan delay.
21. The Council continued to deal with the Recommendation, including contacting X. About two months after the panel hearing, the Council complied with the Recommendation. The Council also paid X £250.

Consideration

Introduction

22. The Procedure provides children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. So, if a council has investigated something under the Procedure, normally we would not reinvestigate it.
23. 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.
24. Here, X’s complaint completed all three stages of the Procedure. The evidence showed X had accepted the findings made at stage two of the Procedure. The complaint continued to stage three as X did not accept all the recommendations made at stage two.
25. I read and carefully considered the stage two IP and IO reports and the Council officer’s adjudication; and the stage three panel report and the Letter. I saw no flaws in the Procedure that would call into question the findings made into X’s complaint at stages two or three. I also found the Council properly considered the findings and recommendations made at stages two and three of the Procedure. I did not therefore reinvestigate X’s complaints. My investigation focused on compliance with the panel’s recommendations, including the matters set out in the four bullet points to paragraph 1 of this statement.

The Recommendation

26. The evidence showed the Council had explained its delay in complying with the Recommendation at the panel, which X attended. Following the panel meeting, the evidence showed the Council liaised with X about the Recommendation. And, having taken account of X’s views, the Council complied with the Recommendation. I saw no evidence of further avoidable delay or other fault by the Council in carrying out the Recommendation, or paying X £250, after the panel meeting.
27. The Council said it had acted on the panel’s recommendations to prevent a recurrence of the delay that occurred in carrying out the Recommendation. It had also improved its management of long-term staff absences. The Council said these measures should help reduce delay and drift in carrying out recommendations made at stages two and three of the Procedure.
28. Overall, the evidence showed avoidable delay by the Council, which was fault, in carrying out the Recommendation. The fault caused X avoidable distress, which was injustice, and had in part led X to continue with their complaint to stage three of the Procedure. However, the Council had, eventually, carried out the Recommendation. It had also made further apologies and paid X £250 in recognition of the injustice caused by its further avoidable delay between stages two and three of the Procedure. I found implementation of the Recommendation, the further apology, and payment of £250 suitably put right the injustice caused by the Council’s delays. I therefore found no remaining significant injustice to X, or C, for me now to remedy.
29. The evidence also showed the Council had acted on the panel recommendations to prevent future similar delays. So, I also found no grounds now to recommend any added service improvements to the Council.

Funding support services

30. X’s complaint included their request, refused by the Council, to fund support services for C. I have found (see paragraph 25) no flaws in the Procedure or the Council’s consideration of its stage two and three findings and recommendations. Having suitably considered X’s funding request at all three stages of the Procedure, the Council was entitled to reach a differing view to X on the need for such funding. And, without evidence of fault in how the Council considered the matter, I could not question its decision not to provide such funding however strongly X might disagree with that decision (see paragraph 4).

The Letter

31. The Letter repeatedly misspelt C’s name: this was fault. The failure to correctly spell C’s name in responding to the complaint would be upsetting for X. The Letter also wrongly described the relationship between X and C, which would have added to X’s distress. I therefore found fault causing injustice here. To put right that injustice, I found a written apology from the Council to X would be proportionate, appropriate and reasonable.

The EHC Plan procedure and complaint

32. Councils must use the Procedure where it applies to a complaint. However, Council’s may receive complaints where the Procedure applies only to some matters complained about. There should be no resulting disadvantage to complainants that make such complaints. And, we would not normally criticise councils choosing to carry out a single investigation and provide a response to all a complainant’s concerns. Equally, councils may separate a complainant’s concerns and investigate and respond to them under the relevant complaint procedure. Either way, it is important councils explain their approach to the complainant.
33. Here, X’s complaint was a hybrid complaint including matters both within and outside those covered by the Procedure. The Council said it considered one investigation into the whole complaint would be best for X. Unfortunately, that part of the complaint about C’s EHC Plan remained unresolved to X’s satisfaction at stage 3 of the Procedure. And, as identified by the panel, the Procedure did not apply to the complaint about C’s EHC Plan. So, months after X had complained, the Council referred them to the Corporate Procedure to resolve their concerns about C’s EHC Plan. This was not in X’s, or C’s, best interests. I therefore found fault here and resulting injustice to X and C.
34. In learning from what happened, the Council said it now signposted complainants to the relevant complaint procedure when they complained. I therefore found no grounds now to recommend service improvements to the Council for handling hybrid complaints.
35. Turning to C’s EHC Plan, the Council agreed to carry out an EHC needs assessment within six weeks. So, I found no fault here. However, the evidence showed the Council did not tell X whether it would issue an EHC Plan after 16 weeks. And the Council had not issued either a draft or final EHC Plan within 20 weeks of X asking for an assessment. (See paragraph 15.)
36. The Council said, the national shortage of EPs contributed to its delay. (In agreeing to assess C’s needs, its letter to X had referred to pressures on EPs causing significant difficulties in meeting statutory timescales for assessments. But staffing shortages had also affected its ability to prepare and issue draft and final plans once it received professional advice, including from an EP.
37. The Council said it had been implementing a comprehensive Transformation Plan for handling EHC needs assessments and Plans. This included added financial support for the service and recruiting more staff. It now had more staff and continued to use agency EPs to help deal with its backlog of cases. And the percentage of cases where it met the 20-week statutory timescale for issuing final EHC Plans had and was improving.
38. X had asked for C’s EHC needs assessment around the start of its Transformation Plan. So, C’s case was affected by its then backlog of cases and it was about five months before an EP considered C’s case. The EP then took six weeks to provide advice. After receiving the EP’s advice, it took over four months to issue C’s draft EHC Plan. It had then written to X to apologise for its delay and confirm it was preparing C’s draft EHC Plan “as a matter of urgency”. However, the Council accepted its communication with X during the delayed assessment was unsatisfactory. I agreed. The Council offered its further apologies for the distress this caused X and C.
39. The evidence showed the Council issued a draft EHC Plan for C nearly a year after X asked for an assessment. And, about 12 weeks after issuing the draft EHC Plan, the Council issued C’s final EHC Plan. So, overall there was avoidable delay in the EHC Plan procedure of about 43 weeks beyond the statutory 20-week timescale (see fifth bullet point to paragraph 15).
40. We are aware there is a national shortage of EPs. If we are satisfied a council has put measures in place to mitigate the impact of that shortage on its services, we consider delay attributable to the lack of EP advice as service failure (see paragraph 4). Here, I was satisfied the Council was acting to address the impact of EP shortages on its services (see paragraph 37). I therefore found the delay in securing an EP report for C’s assessment was a service failure.

41. However, after receiving the EP’s advice, staff shortages meant the Council took about seven months to issue a draft and final EHC Plan for C. So, there was further avoidable delay by the Council, which was fault, after it received the EP’s advice.

42. C now has an EHC Plan. However, the evidence showed the Council’s delays and complaint handling was frustrating and distressing for X. It also likely led to avoidable uncertainty about the special educational provision for C. I therefore found the Council’s fault caused X and C injustice.

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Agreed action

43. I found fault causing injustice at paragraphs 31 and 39 to 42 that had not yet been suitably put right. To address the outstanding injustice to X and C, the Council agreed, within 20 working days of this statement, to:

• Send X a written apology for the distress caused by its errors in the Letter.
• Send X a written apology for the distress caused by the avoidable delay in completing C’s EHC needs assessment and issuing a final EHC Plan. The apology should be written in a way that ensures it is suitable for sharing with C and so take account of C’s age and needs.
• Make a symbolic payment of £1,000 to X. The payment was to recognise the avoidable frustration and uncertainty caused by the Council’s avoidable delay in completing C’s EHC needs assessment and issuing a final EHC Plan. X may wish to use the symbolic payment for C’s benefit.

44. The Council should consider paragraph 3.2 to our guidance on remedies in making the apology recommended at paragraph 43.
45. The Council also agreed to provide us with evidence it had complied with the actions set out at paragraph 43.

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Final decision

46. I completed my investigation, finding fault causing injustice, on the Council agreeing the actions set out at paragraph 43.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman