Summary: We have ended our investigation into Ms X’s complaint because it is not appropriate for the Ombudsman to investigate until the Council has completed the statutory children’s complaints procedure.

The complaint

1. Ms X complains that the Council failed to consider evidence that showed the provider it commissioned to provide occupational therapy support for her son was the lead provider for his bathroom adaptations and, because of their actions and those of the Council, he was still waiting for the adaptations.

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The Ombudsman’s role and powers

2. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

3. I have considered all the information provided by Ms X together with the Council’s responses to her complaint.
4. Ms 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

Legal and administrative background

Education, Health and Care Plan

5. 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.
6. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision needed by the child or the young person. 
• Section H1: The social care provision which must be made for the child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.
• Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. (Where relevant this includes adult social care provision to meet eligible needs under the Care Act 2014).

The statutory children’s complaints procedure

7. The Children Act 1989 established the requirement for councils to have a formal procedure to deal with complaints about local authority functions under Part 3 of the Act and some sections of Parts 4 and 5. We call this ‘the statutory children’s complaints procedure’.
8. The Children Act 1989 Representations Procedure (England) Regulations 2006 specify which functions are subject to the procedure and which are excluded. The Regulations also set out the three-stage procedure and the timescales for each stage.

Key facts

9. Ms X’s child, C, has special educational needs and has an EHC Plan.
10. The Council commissioned an occupational therapy (OT) provider, Company Y, to deliver provision set out in the Plan.
11. Ms X complained to the Council about the behaviour of Company Y. She said the Company had been commissioned by the Council to deliver OT support to C as set out in section F and section H of his EHC Plan, but they were now refusing to deliver part of that support saying social care OT was not within their remit.
12. Later in the same month, Ms X complained that the Council had failed in its legal duty to provide home adaptations for C.
13. Ms X complained to the Council again early the next month. She said it was refusing to meet C’s needs by failing to deliver the provision set out in section F and section H of his EHC plan and by disregarding its legal duties in relation to meeting the needs of a disabled child.
14. The Council issued a stage 1 response under its corporate complaints procedure. It said the complaints team had discussed with Ms X the management of complaints where they relate to two different services within the Council and considered it appropriate to combine all the issues in a single stage 1 response. So, the response addressed the issues relating to both education and social care.
15. The Council concluded in its stage 1 response that Company Y was commissioned to deliver the OT provision in section F of the EHC plan but had not been directly commissioned by social care to provide OT provision under section H and this provision was managed by children social services OT service.
16. Ms X was dissatisfied with the Council’s response and escalated her complaint to stage 2. She argued that Company Y was the lead social care OT provider for C and the Council was aware of this.
17. The Council decided respond to some of the issues Ms X raised under its corporate complaints procedure and other issues under the statutory children’s complaints procedure. The corporate procedure dealt with issues relating to the OT support set out in section F of the EHC Plan and also considered who should be making decisions in relation to bathroom adaptations. The statutory procedure dealt with issues concerning social care OT support for C (set out in section H of the EHC Plan) particularly in relation to the bathroom adaptations.
18. The Council issued a Stage 2 response under its corporate complaints procedure.
19. Ms X complained to us two months later.
20. The Council subsequently issued a stage 2 response under the statutory children’s complaints procedure. Ms X was dissatisfied with the response and escalated her complaint to stage 3. The Council has agreed that the complaint will be considered by an independent panel and this process is ongoing.

Analysis

21. In her complaint to us Ms X said the Council failed to consider evidence which showed Company Y was the lead provider for C’s bathroom adaptations and, because of the Council’s actions and those of Company Y, C was still waiting for the adaptations he needed.
22. When I spoke to Ms X she said she only wanted the Ombudsman to investigate the matters dealt with in the Council’s corporate stage 2 response and not the issues currently being considered by the Council under the statutory children’s complaints procedure.
23. In a recent email to the Council Ms X said she had only asked us to investigate whether Company Y was undertaking social care OT with the Council’s knowledge and that this was not related to the subject matter of the statutory complaint.
24. However, Ms X’s complaint to us clearly refers to matters which are being considered by the Council under the statutory complaints procedure (bathroom adaptations).
25. Having read both the Council’s stage 2 responses, I am concerned that, if I proceed to investigate Ms X’s complaint, I may trespass onto the Council’s stage 3 investigation because the subject matter of both complaints is so closely linked.
26. Under the corporate procedure, the Council considered issues relating to lack of OT support as set out in section F of the EHC Plan but also who should be making decisions in relation to the bathroom adaptations. Under the statutory children’s complaints procedure, the Council has considered issues relating to the bathroom adaptations and the scope of the OT provision Company Y was commissioned to provide. There is therefore an overlap between the corporate complaint investigation and the unfinished statutory complaint investigation.
27. Accordingly, I do not consider it appropriate for the Ombudsman to investigate Ms X’s complaint until the statutory children’s complaints procedure has been completed. At that stage it would be open to Ms X to make a further complaint to us if she remained dissatisfied with the Council’s response. Provided she complained to us in a timely manner after the end of the stage 3 process, we could investigate any issues she wished to complain about.

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Final decision

28. For the reasons explained above, I have ended my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman