Summary: Mr B complained about the Council’s refusal to respond to complaints he made on behalf of X and Ms Y. We found no fault by the Council. It acted in line with its corporate complaints policy and the children’s statutory complaints guidance, and exercised its discretion Mr B was not an appropriate person to make the complaints and represent X. Without fault in the process, these were decisions it was entitled to make.

The complaint

1. The complainant, Mr B, complained on behalf of his grandchild (X) and his grandchild’s mother (Ms Y). He said the Council had wrongly refused to consider and respond to his complaints relating to:
• its handling of the Education, Health, and Care (EHC) plan processes for X in March 2023 and following a further annual review in Summer 2023. He also said X did not receive the educational provision set out in his EHC plan in 2023; and
• the independent reviewing officer and a personal advisor supporting X as a looked after child had failed to ensure he received his education. He also said minutes of meetings were not shared and incorrect advice was provided.
2. Mr B said, as a result, he had experienced distress and time and trouble, and X had experienced a loss of educational provision and support.

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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 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (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. 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)
8. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
9. 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

10. As part of my investigation, I have:
• considered Mr B’s complaint and the Council’s responses;
• discussed the complaint with Mr B and considered the information he provided;
• considered the information the Council provided in response to our initial enquiries; and
• had regard to the relevant law, guidance and policy to the complaint.
11. Mr B 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, guidance, and policy

Education, Health, and Care plans

12. 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.
13. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
14. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

Children’s statutory complaints procedure

16. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail. We also published practitioner guidance on the procedures, setting out our expectations.
17. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
18. 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 is responsible for overseeing the investigation and ensuring its independence.
19. 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 hold the panel within 30 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.
20. The guidance lists who may complain using the statutory procedure. This includes:
• any child or young person (or a parent of his or someone who has parental responsibility for him) who is being looked after by the local authority or is not looked after by them but is in need; and
• such other person as the local authority consider has sufficient interest in the child or young person’s welfare to warrant his representations being considered by them.
21. Where a complaint is received from a representative acting on behalf of a child or young person, the local authority should normally confirm where possible that the child or young person is happy for this to happen and that the complaint submitted reflects his views.
22. The local authority has the discretion to decide whether or not the representative is suitable to act in this capacity or has sufficient interest in the child’s welfare. If the Complaints Manager considers that the representative does not have sufficient interest, he should notify the representative in writing, explaining that no further action should be taken. The Complaints Manager should discuss this decision with relevant operational managers as appropriate.

Corporate complaints policy

23. The Council has a three stage complaints process:
• Stage one – the Council will acknowledge a complaint and aim to resolve this within 10 working days; and
• Stage two – if a complainant remains dissatisfied with its response, a senior officer will investigate the compliant and it aims to provide a response within 15 working days.
24. A complainant has 28 days to request for a complaint to be escalated between each stage, and the policy says timescales make be extended this may be where it need more information from the complainant.
25. The policy also says it may exercise its discretion as to whether a matter will be regarded a persistent or vexations. This may be in circumstances where a complainant is pursuing a complaint which has no reasonable basis, or where the Council has already taken reasonable action in response, or where some other process should or has been taken.

Council Policy on dealing with abusive, persistent or vexations complaints and complainants

26. The Council’s policy defines unreasonably persistent and vexations complaints as ‘those complainants who, because of the frequency or nature of their contacts with the council, hinder the provision of our services, or our consideration of their or other people’s complaints. The description ‘unreasonably persistent’ and ‘vexatious’ may apply separately or jointly to a particular complainant.
27. The policy sets out examples of behaviour which it may find amounts to such behaviour. This includes:
• refusing to corporate in the complaints investigation process or to accept some issues are not within the remit of the policy and procedures;
• insisting a complaint is dealt with in ways which are incompatible with the complaint’s procedure or with good practice;
• making an unreasonable number of contacts with the Council by any means in relation to specific complaints, including adopting a ‘scattergun approach’ by contacting various departments and officers, elected officials, and other bodies.
28. If the Council finds an individual has acted unreasonably persistent or vexatious the Policy sets out the process it will follow to decide whether to restrict the individuals contact with it.

What happened

29. Below is only the key background and events relevant to my investigation.
30. X is a looked after child and a care order is in place for his care arrangements. He has a social worker and an independent reviewing officer allocated to his case. Various meetings around his care support take place each year.
31. X also has an Education, Health, and Care (EHC) plan which sets out his special educational needs and the education he should receive.
32. Mr B has previously raised concerns about the Council’s handling of X’s care support and education, which the Council responded to.
33. In March 2023 Mr B raised concerns to the Council about how it had failed to adhere to the statutory process for X’s EHC plan. This included a delay in holding the annual review and how it involved Ms Y in the process. His concerns were also raised in relevant looked after child review meetings.
34. Shortly after the Council issued X’s final amended EHC plan, which set out he should receive 15 hours of 1:1 tuition per week from a tutor.

Mr B’s Spring 2023 complaints

35. Mr B complained to the Council in Spring 2023. He made three complaints about individual officers, which were:
• the Council’s Head of Special Educational Needs service. This was about the failure to follow the statutory processes for the annual review and amended final EHC plan. He also added the Council had failed to provide the education set out in the EHC plan for X;
• X’s personal advisor as a looked after child. Mr B said the advisor had provided inaccurate advice to X’s mother (Ms Y) regarding the annual review for X’s EHC plan, which he believed was intentional to mislead her; and
• the independent Reviewing Officer (IRO). Mr B said the officer had failed to provide minutes of meetings or caused delays in sharing minutes, and had failed to ensure the Council provided X with the education he was entitled to and reviewed his EHC plan.
36. X and Y provided their consent for Mr B to bring the complaints.
37. In response the Council said it would consider Mr B’s complaint regarding X’s EHC plan process and education through its corporate complaints process. It explained the complaints regarding the personal advisor and the IRO would be considered under the children’s statutory complaints process.
38. Over the following month, Mr B further clarified his complaints and included the Leader of the Council and the Director of Children Services in his correspondence. He did not agree to the Council’s proposed way of investigating the complaints, as he wanted each issue addressed.
39. The Council explained it would address each issue as brought to it, but as it had originally proposed. It asked Mr B to confirm his agreement and informed him about the Ombudsman if he disagreed.
40. When Mr B did not respond, the Council wrote him to explain how it would progress his complaints. Mr B subsequently disagreed. It said it had considered the Ombudsman’s guidance on effective complaints handling and signposted Mr B to the Ombudsman. It also shared its Policy for Persistent and Vexatious complainants regarding Mr B copying in other individuals to his complaints communication.

Mr B’s Autumn 2023 complaints

41. In July 2023 a further annual review was held for X’s EHC plan. Draft EHC plans were issued in September and October 2023.
42. Mr B complained to the Council on four further occasions in Autumn 2023 against individual officers, which were:
• the Council’s Head of Special Educational Needs service regarding the failure to follow the EHC plan process for X’s July 2023 annual review;

The Council’s Head of Special Educational needs provided a response in which Mr B’s complaint was not upheld, but agreed some errors were in X’s EHC plan which would be corrected. The Council said this was not a formal complaint response.

• two separate complaints against the special educational needs caseworker allocated to X’s case regarding contents and errors in X’s draft EHC plan, delays in the process and not responding to a personal budget request; and
• the Council’s Head of Services regarding refusals to share or disclose information under the Data Protection Act, and his general responsibility for the EHC plan process and lack of support X received.
2. The Council subsequently told Mr B it had considered his complaints. Three of which were for the Council’s corporate complaints process and one which was for the Children’s statutory complaints process. However, it had decided not to respond to Mr B’s complaints. It explained this was because:
• he did not qualify as a person who could make the complaint on X’s behalf, but it had since obtained X and Ms Y’s consent;
• it had then considered whether Mr B had sufficient interest in X’s welfare to warrant representations. It found he did not and exercised its discretion he was not a suitable representative. It explained this was because he was not a carer for X, and it did not consider it in X’s best interest for Mr B to receive some personal information which may be disclosed during the complaints process.
3. Ms Y subsequently resubmitted the same complaints Mr B had made to the Council in her name.
4. Mr B made a further complaint against the Council’s Assistant Director for Policy Change and Reform regarding the Council’s refusal to investigate and respond to Mr B’s complaint on X and Ms Y’s behalf.
5. The Council wrote Mr B with a formal warning under its Persistent and Vexatious Complaint Policy regarding his eight separate complaints since March 2023. This was because he had unreasonably included different services and officers regarding the same complaints which was causing excessive demands on its resources. It explained it had provided its response to the complaints, and nothing further could be added.
6. In early 2024 Mr B:
• wrote the Council again disagreeing with its view;
• complained about an officer in the Council’s Information Governance, Compliance and Complaints team and included the Leader of the Council in the correspondence. This related to the Council’s refusal to investigate the complaints he had made and to provide information he had requested; and
• complained to the Leader of the Council. In which he complained about all the Council officers he had dealt with and shared the failures he believes the Council had caused X.
7. In March 2024 the Council’s monitoring officer considered whether to apply restrictions on Mr B’s communication with the Council. It noted Mr B had included various officers, departments, an MP, other Councils, elected officials, its independent auditor, the police, solicitors and the Ombudsman in his correspondence regarding his complaints. It found this to be persistent and vexatious but decided not to take action at the time as no further communication had been received from Mr B for a short period of time.

Analysis and findings

49. Mr B’s complaint relates to matters regarding X’s education and support as a looked after child which partly occurred more than 12 months before he brought these to our attention. His complaint is therefore partly late. However, I have found it appropriate to exercise my discretion to consider the concerns from March 2023 when the annual review was completed, and X’s EHC plan was issued.

Mr B’s Spring 2023 complaints

50. Mr B’s complaints on X’s behalf included:
• X’s EHC plan and process, which was to be considered under the Council’s corporate complaints process; and
• concerns officer’s supporting X as a looked after child had given incorrect advice, failed to share minutes of meetings, and failed to ensure X received his education. These concerns were for the children’s statutory complaints process.
51. Neither complaints process has been completed. I have considered whether the Council was at fault for failing to investigate and respond to Mr B’s complaints under the two processes.
52. The Council started the process to consider Mr B’s complaints. It separated the complaints made under the corporate and statutory children’s complaints process. It then set out key points of the complaints and informed Mr B it would consider each point he had made. Mr B did not agree.
53. I have not found fault in how the Council proposed to investigate Mr B’s complaints. It was therefore not due to fault by the Council the two complaint processes were not completed.
54. In reaching my view, I was also conscious:
• 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. Because of this, we expect people to complete the complaints procedure before we will consider whether there were any flaws in how the Council investigated their concerns. I have therefore not investigated Mr B’s concerns about officer’s supporting X’s alleged failures;
• parts of the complaint related the EHC plan process and provision which carried appeal rights to the SEND Tribunal from March 2023 when the Council issued X’s final amended EHC plan. If Mr B, Ms Y or X disagreed with the contents of the plan they had the right of appeal; and
• Mr B’s complaints were against individual officers, rather than the Council as the responsible body for X’s education and welfare. His aims for actions against individual officers were therefore not achievable under the complaints processes, nor within the Ombudsman’s powers.

Mr B’s complaints from Autumn 2023

55. The Council decided not to respond to Mr B’s complaints on X’s behalf from Autumn 2023. These related to the further annual review, the EHC plan process and X’s education. The complaints were therefore largely for the Council’s corporate complaints process.
56. I have considered the Council’s reasons for not investigating Mr B’s complaints. I have not found the Council at fault. It reached its views in line with the discretion available to it under the children’s statutory complaints procedure and its corporate complaints policy. These were:
• Mr B was not a person qualified to make complaints on behalf of X under the children’s statutory complaint procedure, although it subsequently received Ms Y and X’s consent;
• Mr B did not have sufficient interest in X’s welfare to warrant his representations; and
• due to data protection concerns, as it found some information of X was likely to be disclosed to Mr B in the complaints process, which was not in X’s best interest.
57. While I acknowledge Mr B disagrees with the Council’s decision, these were decisions it was entitled to make.
58. It is clear Mr B disagrees with the Council’s reasons for not investigating the complaints or disclosing information due to data protection reasons. Such concerns should be brought to the Information Commissioners Office (ICO), as it is best placed to consider disputes about data sharing.
59. In addition, I understand the Council found Mr B’s complaints and communication to be abusive, persistent and vexatious and it warned him about such behaviour. It has not restricted his access in communicating with the Council. I have not found any fault in the process the Council followed to reach its view on this matter.
60. I also agree Mr B’s nine complaints against individual Council officers, relating to the same Council responsibility, since March 2023 were conducted in an unhelpful manner, which was likely to cause confusion and make it difficult for the Council to provide its responses.

Did X experience a loss of education?

61. As Mr B’s complaints on X’s behalf have not completed the corporate complaints process. I cannot say whether X has experienced a loss of education, or a loss of provision as set out in his final amended EHC plan from March 2023. Nor can I say whether the Council was at fault for causing delays in the EHC plan process since the annual review in Summer 2023.
62. I understand Ms Y has submitted complaints on behalf of X relating to the same matters around X’s education and EHC plan process in late 2023. I cannot consider how the Council has responded to these complaints as part of this investigation. However, I would expect the Council to have considered Ms Y’s complaints and provided a response, or reasons why it will not respond to her directly. This may be through a combination of its corporate complaints process and the children’s statutory complaints process.

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Final decision

63. I have completed my investigation with a finding of no fault by the Council.

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Investigator's decision on behalf of the Ombudsman