Summary: Mrs X complained about a lack of support from the Council when attempting to secure special educational provision for Ms Y. We find the Council at fault for delays in considering Mrs X’s request and for not clearly communicating its decision. We also find fault with how the Council responded to Mrs X’s complaint. The Council has agreed to apologise to Mrs X, make a payment to recognise the uncertainty caused, and act to prevent recurrence.

The complaint

1. Mrs X complains about a lack of support and action from the Council in helping her secure appropriate Special Educational Needs and Disability (SEND) education for her daughter, Ms Y. As a consequence of this, Mrs X says Ms Y is well behind where she ought to be in terms of literacy, functional numeracy and life skills.

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The Ombudsman’s role and powers

2. 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 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)
3. 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)
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. 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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What I have and have not investigated

6. We cannot investigate complaints about events that took place more than 12 months before a complainant contacted us. We can only exercise discretion to look back further if there are good reasons to do so.
7. Mrs X first brought her complaint to the Ombudsman in October 2023, meaning anything that happened before October 2022 has been raised late. Mrs X asked the Council to provide a personal budget to be used towards Ms Y’s education in May 2022 and continued to pursue the matter since that time. For this reason, I have decided to exercise discretion to begin my investigation from May 2022.
8. Mrs X has complained about events that took place as far back as 2017 but I have seen no good reason to exercise discretion to go back as far as this. Any mention below of events that took place before May 2022 are for reference only.

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How I considered this complaint

9. I spoke to Mrs X about her complaint and considered information she provided. I also considered information received from the Council.
10. Mrs 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 policy

Mental Capacity Act 2005

11. Having mental capacity means being able to make your own decisions. The council will assess someone to see whether they lack capacity to make specific decisions because of illness or disability.
12. The Mental Capacity Act 2005 applies to people who may lack capacity to make certain decisions. The Code of Practice to the Mental Capacity Act (the code) is statutory guidance which councils generally need to follow. It sets out steps organisations should take when considering whether someone lacks mental capacity.
13. Both the Mental Capacity Act and the code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity.
14. The council must assess someone’s ability to make decisions when that person’s capacity is in doubt.
15. When assessing if someone has capacity, the assessment must only examine a person’s capacity to make a particular decision when it needs to be made. This is particularly relevant to people with fluctuating capacity.

Special educational needs

16. A young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the young person’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.
17. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue, amend or cease an EHC Plan or about the content of the final EHC Plan.

What happened

18. Ms Y has SEN and her education was previously supported by an EHC Plan. As Ms Y no longer wanted to engage in post-19 education, the Council says it stopped maintaining her EHC Plan in 2020.
19. In May 2022, Mrs X contacted the Council to ask it to provide a personal budget for Ms Y to access some education in the academic year starting September 2022 as this was the last year she would be eligible for SEND provision.
20. As Ms Y had previously said she no longer wanted to engage with education, the Council said it would have to check if there were any concerns around her mental capacity to make this decision for herself. It agreed to check if it had carried out any mental capacity assessments for Ms Y relating to education previously.
21. Mrs X chased the Council in July 2022, and it confirmed it had not previously undertaken any mental capacity assessments for education for Ms Y. The Council then discussed Ms Y’s attitude to education with staff at her residential care home. The residential care home manager told the Council Ms Y had expressed that she did not want to engage in any further education. The Council did not pursue the matter further from this point.
22. Mrs X complained to the Council in October 2023, explaining she knew Ms Y was no longer eligible for SEND provision, but she was disappointed and frustrated by the lack of support from the Council going back to 2017. Mrs X explained she had contacted the Council in May 2022 to ask for SEND support for Ms Y, but it had taken several months considering whether it needed a mental capacity assessment. Mrs X said the Council stopped pursuing the matter after Ms Y reiterated that she did not wish to pursue education, but she felt the Council should never have rescinded Ms Y’s EHC Plan.
23. The Council responded to Mrs X’s complaint, saying it related to issues that had been considered by a SEND Tribunal and so it would not consider them.
24. Mrs X responded to the Council asking it to review her complaint as she was not complaining about a SEND Tribunal decision, but the lack of action from the Council.
25. The Council responded to say it could only consider complaints about events within the last 12 months, but Mrs X’s points stretched back to 2017. The Council reiterated that part of Mrs X’s complaint seemed to relate to actions following a tribunal decision and it could not consider this either.

Analysis

26. The Council was not maintaining an EHC Plan for Ms Y in May 2022 when Mrs X asked the Council to provide her with a personal budget to arrange provision. This means the Council was under no obligation to secure any specific educational provision for Ms Y and I do not find it at fault for failing to do so.
27. The Council was aware Ms Y had already said she no longer wanted to engage in education so considered whether she had the mental capacity to make that decision for herself. It eventually acted on the advice of staff at Ms Y’s residential care home, who would have been best placed to know if Ms Y was able to make that decision herself. I do not find fault with the Council’s decision-making process here.
28. However, the Council let the situation drift considerably. The Council took several months to decide if there was any reason to doubt Ms Y’s ability to decide whether she should engage in education, meaning Mrs X had to chase several times. The Council then stopped pursuing the matter in August 2022 without giving Mrs X a definitive answer. This is fault and caused distress and uncertainty for Mrs X which is injustice.
29. When Mrs X complained to the Council, it did not address the points she made. It simply explained it would not consider issues that had been decided on by a tribunal or that had taken place more than 12 months ago. However, having looked through the complaints Mrs X made to the Council, it was clear a large part of her complaint related to issues since May 2022 and the Council did not address these. This is fault and meant Mrs X was put to the time and trouble of having to remain in the complaints process which may have been avoided if the Council had given its view on these aspects of her complaint, which is injustice.

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Agreed action

30. To address the injustice identified above, the Council has agreed to carry out the following actions within one month:
• Provide Mrs X with a written apology for the injustice identified above;
• Pay Mrs X £150 to recognise the distress and uncertainty caused by the delays in making a decision on her request for a personal budget for Ms Y’s education and its failure to properly communicate this;
• Pay Mrs X £150 to recognise the time and trouble she was put to in the complaints process which could have been avoided if the Council responded to her complaint properly;
• Remind staff dealing with requests for personal budgets to be used towards SEN provision of the importance of communicating their decisions clearly and in writing to applicants; and
• Remind staff dealing with complaints of the importance of considering a complainant’s points and providing clear, reasoned responses.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I find the Council at fault for delays in the process of dealing with Mrs X’s request for a personal budget and for not clearly communicating its decision. I also find fault with how the Council responded to Mrs X’s complaint. The Council accepted the recommendations set out above, and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman