Summary: Mr X complains of several failings by the Council in making SEN provision for his son, Z, causing loss of education and stress for the family. Some of the matters complained of are outside our jurisdiction, and the Council was not at fault in others, but it took too long to issue an Education Health and Care Plan for Z, and failed to consider Mr X’s complaint under the correct statutory procedure, despite two elements of the complaint being social care matters. However, these faults did not cause the injustice the family suffered.

The complaint

1. The complainant, whom I shall call Mr X, complains the Council:
1. Provided minutes of Child in Need meetings that contained inaccuracies;
2. Failed to make alternative educational provision for his son, Z since March 2019;
3. Provided only the names of all schools in Hertfordshire, including primary schools when he asked for a list of schools suitable for Z;
4. Left Z without a functioning laptop after he stopped attending school;
5. Ended support to help Z play badminton;
6. Wrongly held Child in Need meetings every six months rather than more frequently;
7. Took from February to November 2018 to finalise Z’s EHC Plan; and
8. Took from 2018 to September 2019 to complete a single assessment of Z’s needs.
2. Mr X says Z lost education and the family suffered stress as a result.

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What I have investigated

3. I have investigated complaints a), f), g) and h). I give my reasons for not investigating the remaining complaints at the end of this statement.

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The Ombudsman’s role and powers

4. If we are satisfied with a council’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)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. 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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

9. I read Mr X’s complaint and the documents he sent. I considered the Council’s duties under the SEN Code 2015, the Children Act 1989 and Getting the Best from Complaints 2006, which is the statutory complaints procedure for complaints about children’s social care. I made written enquiries of the Council and considered its response and the documents it provided. I shared a draft of this decision with both parties and invited their comments. I considered what Mr X sent me in response to the draft, including recordings of four meetings.

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What I found

Complaint a): Minutes of Child in Need meetings

10. I have seen evidence that the Council sent Mr X minutes on 20 June 2019, asking him to pick out any errors. I have seen evidence of Mr X’s amendments to the minutes. Some of these were factual amendments, but others were disagreements about what action should be taken. I have seen evidence the Council accepted on 10 July 2019 some factual amendments were needed, and that it made those it felt necessary. The Council did not have amend the minutes in line with Mr X’s preferences, other than where the minutes were inaccurate.
11. Mr X provided a recording of the meeting in response to the draft decision. This showed the meeting started without a social worker having to chair it and take minutes as the minute-taker was 15 minutes late. Mr X complained the social worker had not written down everything had been said. The meeting lasted two hours and was unsuccessful. Mrs X spoke rapidly and repeatedly interrupted the social worker, making threats of action against the social worker. Some of her comments were clearly abusive. Z, who was present, supported his mother’s views and said he had been bullied at his former school and was out of education. The recordings of two subsequent meetings in November 2019 and January 2020 showed a similar pattern, except that Council officers responded more firmly to Mrs X’s frequent challenges. It was clear that there were fundamental differences of opinion between the family and the Council about what had happened in the past and what should happen in the future.
12. I do not find any reason to investigate further here as it is unlikely this would lead to a finding of fault causing injustice. First, the matters in dispute at the first and subsequent meetings concern Z’s educational provision after March 2019. Z has brought his own complaint about these matters and I have considered it separately. Second, the recordings show the issues were matters of interpretation, much though Mr X feels they were matters of fact.

Complaint f): Holding Child in Need meetings every six months

13. The Children Act 1989 is silent about the frequency of Child in Need meetings. Therefore, it was not fault for the Council to hold them every six months.

Complaint g): Delay from February to November 2018 in finalising the EHC Plan

14. This should take no longer than 20 weeks according to the SEN Code 2015. The Council took 36 weeks. It told me Mr and Mrs X frequently changed their minds, but it was unable to provide any evidence to support this. I therefore find the Council at fault for taking 16 weeks too long to issue Z’s final EHC Plan.
15. The delay in issuing the final EHC Plan delayed Mr X’s appeal and the SEND Tribunal hearing by 16 weeks. However, the SEND Tribunal did not increase the level of provision above that already specified by the Council. I do not therefore find that Z lost SEN provision because of the delay.

Complaint h): Taking from 2018 to September 2019 to complete a single assessment of Z’s needs

16. I have seen two assessments of Z’s social care needs. One was carried out in 2018, the second in 2019. Although the second is like the first in its views, they are different documents. I do not therefore find the Council took a year to complete an assessment. The two assessments were separate and completed without delay.

Complaint handling

17. Although complaints a) and h) are social care complaints, the Council considered them with the rest of the matters complained of under its corporate complaints procedure. To accord with Getting the Best from Complaints 2006, the Council had two options. The first was to deal with complaints a) and h) separately under the statutory social care procedure, and to take the reminder through its corporate complaints procedure. The second option was to deal with all the complaints via the statutory social care procedure. It was fault to use solely the corporate complaints procedure. But I do not find this made any difference to the outcome.
18. Despite this, the Council’s failure to use the statutory complaints procedure for children’s social care in this case is part of a concerning pattern involving other cases (16 001 624, 16 001 627, 19 011 650 and 19 012 768).
19. We have already made recommendations to address this and the Council has accepted our recommendations.

Mr X‘s response to the draft decision

20. As Mr X was not sure which of the documents he had would be helpful, I advised him to send all those he thought might be relevant. He sent a considerable number. Many of them concerned the matters that I did not investigate or a new matter he wishes to complain about. However, I have commented earlier on three recordings of meetings. A fourth recording was of a SEN meeting in March 2019. This has no relevance to my decision.

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Final decision

21. I have upheld the complaint about the time taken to issue the EHC Plan and find fault in failing to use the social care complaints procedure for at least two of the matters complained of. But I have not upheld the remaining parts that are within the Ombudsman’s jurisdiction, as there was no further fault by the Council. As there was no injustice caused by the fault found, I do not recommend remedy.

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Parts of the complaint that I did not investigate

22. I did not investigate complaint b). Z has brought his own complaint about this matter to the Ombudsman, and I have dealt with it separately.
23. I did not investigate complaints c) and d) This is because they relate to providing education after Mr X appealed to the SEND Tribunal on 11 March 2019, which means these matters are outside the Ombudsman’s jurisdiction. This is the result of a court ruling that the Ombudsman has no authority to consider any matter relating to providing education beyond the date where a person appeals to the SEND Tribunal. Such matters remain outside the Ombudsman’s jurisdiction even where the SEND Tribunal takes no view on the provision made between the launching of the appeal and the hearing date.
24. I did not investigate complaint e). This is because the matter was considered in the SEND Tribunal ruling that I have seen. It is therefore also outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman