Summary: Ms X complained about the Council’s failure to support her adopted daughter, Z, with her special educational needs and mental health needs. The Council was at fault for a delay in issuing an Education Health and Care plan for Z, poor communication about the basis for providing accommodation for Z, and a delay in responding to the complaint. The Council should apologise, make a payment to recognise the delay in providing educational support for Z and review its processes.

The complaint

1. Ms X complained the Council:
• took too long to finalise their daughter, Z’s, Education, Health and Care (EHC) Plan;
• failed to secure the provision in Z’s EHC Plan in respect of her educational, social, emotional and mental health needs; and
• failed to provide the appropriate child in need provision when Z experienced a mental health crisis in March 2021.
2. Ms X said:
• the Council’s failure to provide appropriate support caused avoidable harm to Z, whose needs have not been met;
• its actions caused avoidable stress and health issues for both her and her husband; and
• its failure to act in Z’s best interests meant the family incurred legal costs and Ms Z had to stop working, which affected her wellbeing and financially disadvantaged the family.

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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. We must also consider whether any 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
8. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
9. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
10. 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

11. I considered:
• the information provided by Ms X;
• the information provided by the Council in response to our enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies.
12. 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

Relevant law and guidance

Special educational needs

13. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education or name a different school. Only the tribunal can do this.
14. 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 SEN Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Matters which can be appealed to the SEND Tribunal

15. Certain SEN decisions have a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal, also known as the First Tier Tribunal (FTT). We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a)).
16. Decisions which are appealable include a council’s refusal to carry out an EHC assessment or to issue an EHC plan, the provision specified in Section F (special educational needs provision) and Section I (the educational placement or type of placement).
17. Where the parent or young person has appealed to the SEND Tribunal, we have no discretion to investigate (Local Government Act 1974, section 26(6)(a)).

Children’s social care

18. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
19. A child is in need if:
• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.
20. 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.
21. Section 20 of the Children Act 1989 says councils shall provide accommodation to any child in need within their area who needs it, because:
• there is nobody with parental responsibility to care for them;
• they have been lost or abandoned; or
• the person who has been caring for them is being prevented from providing suitable accommodation or care.
22. Councils cannot accommodate a child under section 20 if a person holding parental responsibility objects and is willing and able to care for the child or arrange care for the child.
23. A child accommodated under section 20 is a “looked after” child, which means additional safeguards apply such as the appointment of an independent reviewing officer to monitor the placement. However, parental responsibility (the ability to make decisions for the child) remains with the child’s parents.

What happened

Background and scope of this investigation

24. Mr and Ms X are the adoptive parents of two children, Y and Z. Although some of the events below involve both children this investigation relates only to child Z.
25. In October 2018, Ms X asked the Council to assess Z to determine whether they needed an EHC Plan. The Council considered the request but refused to assess. Ms X had a right of appeal to the SEND Tribunal but decided not to exercise this for Z. Ms X made a further request for an assessment in March 2020.
26. We would not usually investigate events more than 12 months before the person complained to us. In this case, Ms X complained to the Council in March 2020 and made a further complaint in May 2021. The Council’s final response dated May 2022 covered the period from October 2018 to December 2021. Ms X complained to us in May 2022.
27. I have not investigated the period from October 2018 when Ms X first asked for an assessment because she did have a right of appeal to the SEND tribunal, which she decided not to exercise. The tribunal was the appropriate body to say whether the Council should carry out an assessment and/or issue an EHC plan. I cannot achieve anything worthwhile by investigating that period.
28. I decided to investigate events from March 2020 when Ms X made a second request for an assessment for Z until December 2021, which is the end of the period the Council has considered through its complaints process. I am satisfied Ms X continued to pursue the matter with the Council throughout that period. I am also satisfied there is sufficient information available for me to make robust findings and provide a worthwhile outcome.
29. I have not investigated events since December 2021. Although I am aware Ms X has further concerns, she has not made a formal complaint to the Council about these, and the Council has not had the opportunity to investigate them through its complaints process.
30. I have also not investigated a complaint about the Council’s handling of Z’s EHC plan when she moved to a new school in September 2021. This is because, although it occurred in the period I am investigating, this was not part of Ms X’s complaint to the Council and the Council has not therefore had an opportunity to respond through its complaints process. EHC Plan process
31. In March 2020 Ms X’s solicitors asked the Council to reconsider its decision in November 2018 not to assess Z. The Council responded two months later on 20 May 2020. It said the information it had was now out of date and a fresh request would need to be made. In response, the solicitor asked the Council to treat the earlier letter as a formal request for an assessment.
32. The Council agreed to assess in late June 2020, which was within 6 weeks of the solicitor asking it to consider its letter as a formal request. On 18 September, it agreed to issue an EHC plan, which was 15 weeks after the request for an assessment.
33. Statutory timescales require councils to issue a final EHC plan within 20 weeks of the request, which would be by 23 October 2020 in this case. On that date, the Council asked Ms X to agree it could miss the deadline in order to include specific information Ms X had asked it to include. Ms X agreed to this. In response to our enquiries, the Council said it did this to avoid a further appeal.
34. The Council said information about Z’s mental health was provided at the end of December 2020. It issued a second draft EHC Plan on 8 January. Mr and Ms X asked for amendments which required a response from Z’s school (school 1). School 1 provided this on 24 March and the Council issued a final EHC Plan on 15 April 2021. This was 47 weeks after Ms X’s solicitors requested an assessment.

Provision during the first COVID-19 lockdown

35. In March 2020, the country went into the first COVID-19 lockdown and schools were closed for all children, apart from children of key workers and vulnerable children, including those with an EHC plan. The Government asked councils and schools to carry out a risk assessment for vulnerable children to decide whether they should attend school or stay at home. During this period councils had to use “reasonable endeavours” to provide the support in EHC plans. This recognised the unusually difficult situation at the start of the COVID-19 pandemic.
36. The Council was not legally required to provide educational support for Z until it issued the final EHC plan in April 2021. This meant it was not obliged to treat Z as a vulnerable child in March 2020 when schools closed. However, given that it was working towards issuing Z with an EHC plan, it asked school 1 to treat Z as vulnerable. School 1 provided a summary of the support it provided during the first lockdown, which included a personalised timetable and weekly telephone calls to check on Z’s wellbeing. Z attended school in person from June 2020.

Support for Z following their mental health crisis

37. In March 2021, following an incident, Z was admitted to hospital. The Children and Adolescents Mental Health Service (CAMHS) made a referral to the Council’s children’s social care department. CAMHS stated it could not discharge Z home because her parents said she could not return as she posed a risk to the family. The family asked for emergency respite.
38. On 3 March, a team manager (TM) contacted the family, the hospital, the police and CAMHS. On 5 March, the TM met Mr and Ms X to explain the professionals’ views were that support for Z was needed which would be best managed within their home. Mr and Ms X said this was not manageable.
39. After considering their views, and seeking legal advice, the Council decided to temporarily accommodate Z under section 17 with foster carers. Its email to the family on 9 March stated the placement would be for a maximum of 17 consecutive days to 22 March. The plan was to carry out a child and family assessment (CFA) and develop a child in need plan whilst Z was with foster carers. In addition, CAMHS would also carry out assessments. Mr and Ms X said she could not return home until there was a clear plan to support her.
40. In April the Council met with the family. Although this is recorded as being a child in need (CIN) meeting, which would usually be multi-agency, the Council did not invite CAMHS or school 1 at the request of Mr and Ms X. At this stage:
• the Council was providing respite for both Y and Z with the same foster carer at different times so that only one child was at home at any one time. It was concerned the placement for Z was becoming a long-term placement and said Z should now be accommodated under section 20 of the Children Act 1989. Mr and Ms X did not agree Z should be accommodated under section 20;
• whilst Mr and Ms X said they benefitted from just having one child at home, they also wanted a period without either child at home so they could rest and have respite from their caring responsibilities;
• Mr and Ms X were unsure whether Z could return home and were also unsure about the proposed child and family assessment (CFA), which they felt would simply go over old ground. It was agreed the Council would send an assessment plan to set out what it proposed to cover and the practicalities, such as how many sessions were involved; and
• Mr and Ms X were also unhappy about what they saw as early mistakes by the Council that it was “glossing over”.
41. Ms X complained in May 2021 and the Council responded in June. In relation to the support from children’s social care, it said:
• there was very little information in the initial referral, which meant the TM did not have an in depth understanding of the situation when he first spoke to the family;
• it confirmed the TM had said that if Z refused to leave the hospital, the Council could not forcibly remove her, and the police would have to be called. But he was not threatening the family with police action;
• it explained that children can be accommodated under section 17 for short breaks of up to 17 consecutive days or 75 days in any 12 month period but if placements exceeded this period, the accommodation would be under section 20, which would mean the child became a “looked after” child.
42. In June 2021, after seeking legal advice, the Council wrote to Mr and Ms X to explain that, as they were not able to care for the children in a way that met the needs of both the parents and the children, the Council did need to take responsibility for the placement, under section 20 of the Children Act 1989. It set out what that would mean in practical terms. It said if there was no section 20 agreement “we will have to consider issuing care proceedings”. Mr and Ms X strongly objected to accommodation under section 20.
43. The Council met with them to discuss this in early July, following which it sent an email confirming its view that the children’s needs required accommodation under section 20. The placement was deemed to be on the basis of section 20 thereafter, although Mr and Ms X did not consent to this. In early August 2021, the Council agreed to pay approximately £320 for Mr and Ms X to seek further independent legal advice about section 20. Mr and Ms X remain of the view that Z can be accommodated under section 17, not section 20, and should not therefore be seen as a “looked after” child.
44. The CFA was completed on 31 August 2021, after six months of working with the family. The CFA was detailed and included the views of both parents, both children and the children’s schools. The assessor:
• was extremely positive about the parents’ care of the children but concluded they were not currently able to meet the children’s needs. The assessor said this was due to “the intensity and the emotional onslaught that parents have faced for 7 years” and
• recommended full-time respite placements continue for both children and the type of intervention therapy the family needed to rebuild their relationships.
45. Mr and Ms X disagreed with much of the CFA and requested their comments be included with the assessment. They stated the assessment was neither balanced nor fair, ignored the rulings from the SEND Tribunal and wrongly stated they had caused the children harm.
46. In September 2021 Mr and Ms X asked for an assessment for Z by a specialist NHS organisation (organisation 1). The Council sought costings from organisation 1. In mid-October, it agreed to make a referral and submitted an application to the Adoption Support Fund (ASF) for funding. In early December organisation 1 said it needed the funding to be agreed before it put Z on its waiting list. On 8 December, the Council agreed it would fund the assessment itself. In its final complaint response in May 2022, it said it the results of the specialist assessment would be used to inform future planning for Z, including identifying an appropriate placement for her.
47. Also in September 2021, Mr and Ms X asked for a disability social worker for Z. The Council explained Z did not meet the criteria for its child health and disability (CHAD) team. This was because the criteria for the CHAD team specifically excluded children whose main needs were around emotional/behavioural development or mental health.
48. On 29 November 2021, the foster carer, who had been caring for Z since March 2021, although not on a full-time basis, gave notice. Her view was that Z did not need the placement as contact with her parents was going well, including overnight stays at home. The Council reviewed the position and decided Z should return home with support for the family through a CIN plan. It did not tell Mr and Ms X that the foster carer had given notice or its decision to change the plans for Z until 3 December. Mr and Ms X were very unhappy. They said:
• the foster carer was not qualified to assess whether the placement was needed;
• they had not had both girls at home at the same time since March 2021;
• they had not yet had the specialist assessment and did not therefore have a proper treatment plan to support Z’s mental health;
• their own mental health had been badly affected by their experiences since the girls were placed with them, which meant they could not care for both girls. Mr X said he was suicidal and that the Council had broken them; and
• the Council needed to find a placement for one or both girls by 27 December, otherwise the family would break down completely.
49. Following this, the Council persuaded the foster carer to continue caring for Z until January 2022, which allowed time to identify an alternative placement for her.

Complaints handling

50. Complaints about children’s services would usually be investigated using the children’s statutory complaints process. This is a three-stage process. The first stage is local resolution. At stage two of this process councils appoint an investigator and an independent person who is responsible for overseeing the investigation. There is then a review by an independent panel at stage three. We would not usually re-investigate a complaint that has been through this process unless the investigation was flawed.
51. In this case, Mr and Ms X initially complained in May 2021 and the Council responded in June. It responded to the issues raised and did so without undue delay. Mr and Ms X were unhappy with the response. The Council decided to investigate the complaints using its corporate complaints process at stage 2. It said this was because some parts of the complaint were within the scope of the children’s statutory complaints process, and some were not. It did, however, agree to use an independent investigator at stage 2, which is what would happen if it had used the children’s statutory complaints process.
52. The independent investigator was commissioned on 8 November. They investigated and issued a final report on 11 May 2022, which was almost six months later. The report upheld some aspects of the complaints made, including:
• a failure to provide Mr and Ms X with minutes from a panel meeting in November 2018 (in which it decided not to carry out SEN assessments) until 11 months later, and a failure to provide feedback on an audit looking at how the school was meeting the girl’s SEN needs (an action from the November 2018 meeting) until this was specifically requested;
• a delay in issuing EHC plans;
• a lack of clear information about section 20; and
• a delay in telling Mr and Ms X that Z’s foster carer had given notice.
53. The Council’s adjudicator wrote to Mr and Ms X on 20 May 2022, to inform them of the outcome of the complaint. They accepted the views of the independent investigator in relation to the upheld complaints and apologised. They did not accept all the recommendations made by the independent investigator but explained their reasons for not accepting them.
54. Although the Council could have provided a single response for all issues using the statutory process, we did not challenge the Council’s decision to take this approach at the time. Since this approach meant there was no stage three review, I have carried out a full investigation of the complaints.

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My findings

Delays in the EHC Plan process

55. In March 2020, Ms X’s solicitors asked the Council to review its November 2018 decision not to carry out an assessment of Z’s SEN. The Council took two months to respond, which was longer than I would expect to see, although given the case was closed over a year earlier, I do not consider this delay amounts to fault. At that point it said the family would need to make a fresh request, which it was entitled to do, given the lapse of time since its original decision.
56. The Council agreed to carry out an assessment within 6 weeks, which was in line with statutory timescales. It did not issue a final EHC plan until 15 April 2021, which was nearly six months later than it should have issued it. This delay was fault.
57. The Council has pointed out that Ms X agreed it could take longer so it could include additional information and avoid an appeal. I note it agreed this in October 2020 to support the family and will take that into account when considering the appropriate remedy. However, taking a further six months to finalise the plan was too long.
58. I see from the record of the meeting in November 2018 when the Council decided not to carry out an assessment of Z’s SEN that Z was receiving some additional support for her SEN in school, which was believed to be working well at that time. The EHC plan issued in April 2021 had more focus on understanding the impact of her early life experiences and set out strategies to support Z in light of that, some of which may already have been in place although not formalised. This means there is some uncertainty about the impact of the delay in finalising the EHC plan on Z and I will recommend a modest payment to recognise she may have missed some support between October 2020, when the plan should have been finalised, and April 2021 when it was issued.

Provision during the first COVID-19 lockdown

59. As mentioned, the Council was not legally required to provide the support in Z’s EHC plan until April 2021. Even if it had finalised the plan within statutory timescales, there would have been no plan in place until late October 2020. That said, the Council did ask the school to treat Z as a vulnerable pupil.
60. Most pupils did experience some disruption at the start of the COVID-19 pandemic as schools and councils adapted to the unusual circumstances and as a result of staff shortages due to illness and self-isolating. Although I appreciate that having Z at home in that period was difficult for Z and the family, I do not consider this was due to fault by the Council, which did ensure school 1 put some support in place for Z. From June 2020, Z attended school in person.

Support for Z following her mental health crisis

61. The Council responded quickly to the referral from CAMHS in March 2021. It allocated a TM to consider the situation. Initially the TM had limited information to work with, but he quickly contacted Mr and Ms X and relevant agencies for information and arranged a meeting to discuss the arrangements for Z’s discharge from hospital. The Council’s view, at this early stage, was that it was in Z’s best interests for her to return home with support for the family, including a safety plan. The records show it carefully considered the risks and benefits to Z of returning home as opposed to being placed elsewhere. There was no fault in the way the Council considered this.

62. Mr and Ms X complained that, during those early discussions, TM told them if they did not collect Z from hospital, the police would be called. The records indicate that initially the only reason Z could not be discharged was because her parents said she could not return home. A day or so later, Z said she did not want to return home. The records state TM advised her parents that, if Z refused to return home, the Council could not forcibly remove her from the hospital and would have to call the police. Although Mr and Ms X saw this as a threat to call the police if they did not allow Z to return home, it appears the intention was simply to provide information in the context of Z refusing to return home. In any case, the police were already involved as they had responded to the incident that led to Z being hospitalised and the Council, appropriately, consulted the police when considering the risks to Z and the family when deciding whether she should return home. Whilst I appreciate the situation was extremely difficult for Mr and Ms X, I do not find fault with the Council for referencing the police at this stage.
63. For Mr and Ms X, the initial decision that Z should return home and the reference to police involvement were “early mistakes” that the Council later tried to “gloss over”. From my review of the records, whilst there was a difference in view between the Council and Mr and Ms X, there was no fault in the Council’s actions and it both explained its reasons for reaching its view and apologised for any upset caused in relation to the police reference.
64. Given Mr and Ms X were clear she could not return home, and Z reported she did not want to do so, the Council reconsidered its position and arranged a foster placement. The records show there were some initial discussions about whether the legal basis for the placement should be under section 17 or section 20, and that TM had legal advice suggesting the basis should be section 20. The content of any legal advice sought at that point is not set out in Z’s case records. Mr and Ms X were very unhappy at the suggestion that Z would become a “looked after” child so the Council initially agreed to a short period of respite under section 17, which was intended to provide respite for her parents and to allow time for CAMHS and the Council to carry out assessments.
65. It became clear by April 2021 that the placement was likely to be for a longer term that initially envisaged and there was some doubt about whether Z could return home at all. The Council therefore wanted to review the basis on which the placement was arranged. Accommodation can be provided under section 20 where the person caring for the child is prevented from doing so, which was the case here, given Mr and Ms X were reporting they could not care for both Y and Z, and that they could not keep everyone safe. It is not for me to comment on the legal basis for accommodating Z – that is a matter for lawyers and, ultimately, the courts – but I have considered the information the Council provided about this to Mr and Ms X. Although there were discussions about this from early March, when some initial legal advice was obtained, I cannot see from the records that any further legal advice was obtained until June, following which a letter was sent to Mr and Ms X setting out its position in detail in early July,. The Council then agreed to pay for Mr and Ms X to get their own legal advice in early August. Although the records show the delay in establishing the basis of the placement and confirming this in detail was due to the Council’s wish to keep working with Mr and Ms X and not to alienate them, I consider it was fault. This caused uncertainty for Mr and Ms X and resultant discussions around how many days Z could be accommodated under section 17 were not helpful.
66. The Council completed the child and family assessment (CFA) in August 2021 after six months of working with the family. The assessment did not follow the usual process as Mr and Ms X were unwilling to agree to focussed sessions and did not want other professionals involved with the children to be invited to meetings, which limited the sharing of information between professionals. Whilst I understand the reasons for the delay in completing the CFA, and that the Council’s focus was to prevent a complete breakdown of the adoption placement, I am concerned the Council may have lost focus on Z at times. Overall, I consider there was some drift here and but that the resultant delay is not sufficient to amount to fault.
67. Mr and Ms X were unhappy with the CFA. They said it ignored the findings of the SEND Tribunal. This refers to the fact they had appealed the Council’s decisions not to assess Y or issue her with an EHC plan and had succeeded on both occasions. They were also unhappy with the suggestion they had caused harm to Z. I have considered the CFA and their comments. I note the situation was complex, as is often the case with adoption placements, and that it would not be possible to include all the information considered by the assessor or that Mr and Ms X considered relevant. I am satisfied the assessment was balanced and, although I understand why Mr and Ms Z were unhappy with the conclusions, the reasons for reaching them are set out clearly and sensitively. The CFA recognised their commitment to both children, the support they provided to them, and the difficulties experienced during the time since the children were placed for adoption. It was not strictly relevant to reference the Tribunal hearings, which related to their support in school, although I understand why Mr and Ms X consider the two areas of support to be closely linked. I do not find fault with the Council in terms of the content of the assessment.
68. In September 2021, Mr and Ms X asked for a specialist assessment with organisation 1. Such assessments are usually funded by the Adoption Support Fund (ASF) and it was appropriate for the Council to say it would apply for funding for this. Since ASF funding decisions take some weeks to obtain and organisation 1 would not add the children to the waiting list until funding was agreed, this meant a delay in starting the assessment, but this was not Council fault as such delays are outside its control. When Mr and Ms X complained about the delay, the Council agreed to fund the assessment although it was not required to do so.
69. Also in September 2021, Mr and Ms X asked for a disability social worker. The Council explained the children’s needs did not meet the criteria for its child health and disability (CHAD) team. I have not found fault with the way the Council considered this.
70. In November 2021, Z’s foster carer gave notice. There was a delay between 29 November and 3 December in telling Mr and Ms X about this. Given the Council needed to consider its position and whether a further placement was needed, I do not consider this delay amounts to fault. Neither a difference of view nor a change of position automatically indicates there was fault by the Council. The Council was entitled to decide Z could return home, based on the information it had, and it was not fault for it to reconsider its position in light of her parents’ strong view that she could not do so.

Complaints handling

71. There was no fault in the complaints handling at stage 1. The Council responded to the concerns raised without delay. Mr and Ms X were not satisfied with the response and the Council agreed to consider the complaint at stage 2, using its corporate process, in early November 2021. It commissioned an independent investigator on 8 November 2021, who issued a stage 2 report on 11 May 2022. One of the reasons for using the corporate process was to resolve the complaint more quickly than the 65 days the children’s statutory process allows. In fact, it took twice as long as the statutory process allows to deal with the stage 2 investigation in this case, almost six months. The delay in responding to the complaint at stage 2 was fault. This caused uncertainty for Mr and Ms X, which did not help the ongoing working relationship between them and the Council.
72. The Council also said it was using the corporate process so it would allow for a single response to issues within and outside the scope of the statutory process, but it should be noted that the statutory process does allow for issues outside its scope to be considered. Further, the use of the statutory process would have allowed for a stage 3 panel, which was not available to Mr and Ms X in this case. That said, they have not suffered a significant injustice as a result of this because I have carried out a full investigation of their complaints. I am aware the Council agreed its approach with this office so I do not find fault with its decision to use the corporate complaints process, which it was hoped would deliver a quicker resolution for Mr and Ms X. But I would urge the Council to consider carefully the lessons it can learn from this to inform its decisions about how to approach complaints handling in future cases.

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Agreed action

73. Within one month of the date of the final decision, the Council will:
• apologise for the delay in responding to the complaint at stage 2 of its complaints process. It has already apologised for the delay in issuing a final EHC plan for Z, and for its poor communication in relation to section 20;
• pay Mr and Ms X £300 to recognise the uncertainty and distress caused by the communications issues and complaints handling delay; and
• pay Mr and Ms X £600, for the benefit of Z, to recognise the uncertainty about the impact of the delay in providing support for Z’s SEN due to the delay in issuing a final EHC plan.
74. Within three months of the date of the final decision, the Council will:
• review its processes to ensure it issues final EHC plans within statutory timescales;
• prepare a factsheet for parents setting out the different ways a child can be placed in its care, including under section 20, to provide sufficient information to enable them to make an informed choice about how to proceed;
• review its complaints handling in this case to ensure it learns any relevant lessons to inform its approach to future complaints and that it responds to complaints either in line with the timescales in its own policy or those set out in the children’s statutory complaints process, as appropriate. It should use the children’s statutory complaints process where some elements of the complaint fall within the scope of that process.

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Final decision

75. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman