Summary: Mr and Mrs X complained about delays in reviewing their daughter’s Education Health and Care plan and how it investigated their complaints. The Council properly investigated Mr and Mrs X’s complaints. However, it did not properly apologise or recognise the impact on them of the failures it accepted. The Council agreed to apologise fully, pay Mr and Mrs X an improved financial remedy and review how it manages statutory children’s complaints.

The complaint

1. Mr and Mrs X complained about delays in reviewing their daughter, Y’s, Education Health and Care plan following a review in late 2018. As a result, they said their right to appeal the content of the plan was delayed which meant Y missed out on some support for her needs.
2. They also complained about the Council’s investigations into other complaints they made. They said the Council delayed investigating their complaints and did not carry out the actions it agreed. As a result, they said they suffered avoidable distress and other children were not properly safeguarded.
3. They wanted the Council to properly carry out the improvements it agreed and make a genuine apology for its failures.

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What I have investigated

4. I have investigated how the Council considered Mr and Mrs X’s complaint under the statutory complaints process and how it carried out the actions it agreed.
5. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

6. 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)
7. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. 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)
10. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
11. 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.
12. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
13. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
14. 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.
15. 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

16. I considered:
• the information Mr and Mrs X provided, and discussed the complaint with them;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
17. Mr X, Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments I received before making a final decision.

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What I found

Education Health and Care (EHC) plans

18. 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.
19. There is a right of appeal to the SEND Tribunal against a decision not to assess for, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Disabled children

20. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
21. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support such as:
• practical assistance in the home including home based short breaks / respite care;
• recreational / educational facilities including community based short breaks; and
• travel and other assistance.
22. Whether a service is required is dependent on the nature and extent of the need assessed and the consequences of not providing a service. Councils may use eligibility criteria and take into account their available resources when providing services under section 17 of the Children Act.
23. Councils can provide services directly, through direct payments if the child’s parents request this, or a mixture of both. In all cases, councils should calculate a personal budget, which is the amount of money the council decides is needed to meet the child’s needs.
24. The Council makes its decisions about how much each personal budget should be through its Resource Allocation Panel (RAP). This is a panel of representatives from the Council, health services, schools and parent carer forums. The Council says the panel considers recommendations from social workers before making the final decision about financial care packages.

Statutory complaints procedure for children’s services

25. 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.
26. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
27. 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 investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
28. 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 days of the date of request, and then issue a final response within 20 days of the panel hearing.
29. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

Background

30. Mr and Mrs X’s daughter, Y, has special educational needs and is disabled.
31. Before moving to the Council’s area in 2018, Y had an Education Health and Care (EHC) plan which said she needed to attend a named special school. After moving to its area, the Council agreed to maintain that placement.

2018 review of Y’s EHC plan

32. Y’s school reviewed her EHC plan in mid-November 2018. It sent a report from the meeting to the Council in late November and the Council decided to amend Y’s EHC plan.
33. However, due to delays in the process, the Council did not issue a draft plan from this review until November 2019, a few days after Y’s school carried out the November 2019 review.
34. In February 2020, Mr and Mrs X asked the Council to issue a final EHC plan so they could appeal to the SEND Tribunal. The Council issued a final plan in early March 2020. Mr and Mrs X appealed the content of this plan, including the named school, to the SEND Tribunal.

Y’s personal budget

35. Between early 2018 and mid- 2020, Mr and Mrs X made several requests for more support to help with caring for Y. They asked for an increased personal budget to pay for more support from carers and for varying amounts of respite care.
36. Y’s social worker supported most of these requests and sought approval from the Council’s Resource Allocation Panel (RAP) on at least 7 occasions. However, the RAP either rejected or only partially approved the requests until mid-2020 when the panel fully agreed with the requested package.
37. Mr and Mrs X appealed the outcomes on several occasions and complained about the decisions through the statutory complaints process.

Mr and Mrs X’s complaints to the Council

38. The Council says Mr and Mrs X made two complaints about the support for Y’s social care needs in mid-2020 and a further complaint about its SEN transport services:
1. 11 May 2020 – about the content of social care notes made by Y’s social worker. The Council responded on 20 May 2020.
2. 28 May 2020 – also about social care notes made by Y’s social worker. The Council responded on 15 July 2020.
3. 15 July 2020 – about the Council’s SEN transport services. The Council responded on 6 August 2020.
39. Each of these complaint responses explained about how to escalate each complaint to the next stage of the process.
40. Mr X wrote to the Council’s Chief Executive and several members of the Council in early February 2021 about various concerns with the Council’s support for disabled children, including issues covered in his stage one complaints.

Stage two investigation

41. The Council decided to consider Mr X’s concerns under stage two of the statutory complaints process. After further discussions between the Council and Mr X, they agreed on 24 February 2021 that the stage two investigation would cover the following complaints:
1. The Council discriminated against Mr and Mrs X based on their gender and misrepresented them as parents in its social care records.
2. A council officer provided a false witness statement during the SEND Tribunal proceedings.
3. The Council’s transport company did not have adequate policies in place and failed to carry out a risk assessment when it decided Y would share transport with another child.
4. The Council ignored safeguarding concerns about the welfare of Mr and Mrs X’s other children and the Resource Allocation Panel refused to accept the social worker recommendations.
5. The Council’s direct payment system was dysfunctional which affected Y’s carer.
6. The Council failed to provide full or timely responses to their requests for information under the Data Protection Act and that this was a deliberate attempt by the Council to prevent Mr and Mrs X presenting evidence to the SEND Tribunal.
42. The Council arranged for an external Investigating Officer and Independent Person to consider Mr and Mrs X’s complaints under stage two of the statutory procedure.
43. The Investigating Officer issued their report on 11 May 2021. They found that:
1. The social worker had used “inappropriate terminology” to describe Mr and Mrs X in their case records and this was the third occasion on which they had challenged the wording and comments of social workers.
2. There was no evidence to show that the Council officer’s statement to the tribunal had been false.
3. The transport company had been given information about Y’s needs and there had been no reported incidents using the transport since 2018. However, the company did not have adequate processes in place to trigger reviews or assess risk at appropriate times. Transport staff had also failed to report some incidents correctly.
4. The Resource Allocation Panel had properly considered Mr and Mrs X’s requests and the social worker recommendations, which were fully discussed at the panel meetings. The panel had given clear reasons for disagreeing with the social worker’s opinions and had kept the decisions under review.
5. The Council had known about the problems with the Council’s direct payment systems. There were delays in starting Y’s direct payments and then a three-to-five-month delay closing Y’s account after Mr and Mrs X asked for alternative arrangements.
6. There was a delay in some of the Council’s responses, but there was no evidence of deliberate attempts to prevent Mr and Mrs X presenting evidence to the tribunal.
44. The Investigating Officer recommended that the Council:
• apologise to Mr and Mrs X and acknowledge the impact on them and Y;
• consider reviewing its policies and procedures in light of the findings of the investigation; and
• shared relevant parts of their report were with staff and agencies involved.
45. The Council wrote to Mr and Mrs X on 22 June 2021 with its decision about the complaint. The Council agreed with the findings of the Investigating Officer and with the recommendations. In its letter the Council “offer[ed] [its] apologies for the time and trouble [Mr and Mrs X] had to take over these matters, in particular [the complaints] which were upheld or partially upheld”. It also explained it would share the findings of the report with senior staff to identify any opportunities for the Council to improve.

Stage three review

46. Mr and Mrs X were not satisfied with the Council’s response, so asked for a review under stage three of the statutory procedure on 6 July 2021. The Council arranged the review panel for 20 August 2021.
47. The stage three review panel was also independent of the Council. It reviewed the stage two investigation and found that:
1. In addition to inappropriate terminology, there was evidence of gender discrimination in how the Council described Mr and Mrs X’s roles within the family. The panel also agreed that the social worker had misrepresented Mr and Mrs X as parents.
2. The stage two investigator did not have a copy of the disputed witness statement during their investigation. However, the panel did not pursue this further as they view was that it would have been appropriate for Mr and Mrs X’s representative to raise this during the tribunal proceedings.
3. In addition to the stage two findings, the transport company had not properly assessed the risks of transporting another child in the same vehicle as Y.
4. The stage two investigation had correctly decided that the RAP properly considered the social worker’s recommendations and gave clear reasons for its decisions.
5. It did not need to consider this complaint, as it had been fully upheld by the stage two investigation.
6. There was no deliberate attempts to withhold information from Mr and Mrs X, but there were delays and still missing information.
48. The panel recommended that the Council:
• fully apologise to Mr and Mrs X;
• ensure that social worker case recording is based on evidence and fact, rather than opinion;
• ensure team managers have greater oversight of case recording;
• should have a system for risk assessing each child using school transport which should be reviewed annually or when changes occur;
• should invite Mr and Mrs X to join the local Parent Carer Forum; and
• provide the missing information from Mr and Mrs X’s data protection request.
49. The Council sent its final decision to Mr and Mrs X on 21 September 2021. It accepted the findings of the stage three panel and partially accepted the recommendations:
• In its letter the Council “offer[ed] [its] sincere apologies for the inappropriate language used as well as the lack of a robust risk assessment process on this occasion, and for the distress that this caused.”.
• The Council invited Mr and Mrs X to join the Parent Carer Forum and direct them to information about the group.
• It agreed that there should be more oversight of social care records. Its view was that social workers are entitled to form opinions since this is part of their role. However, is said it would remind staff and manages that any opinions should be clearly identifiable as such.
• It said it would review the system of risk assessments for those children using school transport who have Education Health and Care plans.
• The Council provided the outstanding information by the end of September. With this response, it explained how to complain to the Information Commissioner if Mr and Mrs X were still not satisfied with its response.

Events after the statutory complaints process

50. Following its final decision, the Council says it has improved its social work monitoring processes. It has:
• introduced a system of auditing by independent auditors, social workers and managers from other teams;
• commissioned an external report into how its children with disabilities team operates, to identify other improvements; and
• arranged other external audits of the quality of its service.
51. The Council also introduced changes to its risk assessment for school transport involving children with Education Health and Care plans. However, these changes coincided with other problems around changes to transport arrangements in September 2021. The Council accepted there were problems with its transport company around this time and these issues are being considered by the Council’s Audit Committee and through an external audit.

My findings

The Council’s investigation

52. The statutory investigation process must be independent of councils. Therefore, where a council has investigated something under the statutory children’s complaint process, the Ombudsman does not normally re-investigate it unless we consider the investigation was flawed.
53. I am satisfied that the Council’s stage two and three investigations were independent of the Council and, for the most part, considered the available relevant evidence and reached adequately explained conclusions based on that evidence.
54. The only aspect in which I believe the investigation was flawed was how the Council considered the complaint about the council officer’s witness statement to the SEND tribunal. The stage two investigation made findings about this complaint without seeing the witness statement in question.
55. The stage three panel identified this and had access to the statement at the time though. Mr and Mrs X say the panel was not given a true copy of the statement they disputed. The panel could have recommended the Council re-investigate this part of the complaint. However, it believed Mr and Mrs X could have raised the matter during the SEND Tribunal process.
56. The Ombudsman cannot consider matters which have already been considered by a tribunal. Since Mr and Mrs X had the opportunity to question the witness statement during the Tribunal, this is not something I can consider now. We also cannot consider complaints about the conduct of court proceedings. While the SEND Tribunal is not a court for the purposes of this rule, I am satisfied that Mr and Mrs X’s complaint about the witness statement is enough like something we cannot investigate, that we should not consider it. Therefore, I have not reinvestigated that part of Mr and Mrs X’s complaint to the Council.

Remedies

57. Mr and Mrs X were not satisfied with the detail or sincerity of the Council’s apology. They say, when they raised this with the Council, it told them it was following our guidance and could not go into more detail with its apology.
58. Our guidance to councils and our guidance on remedies sets out our view on apologies. We believe that apologies should:
• accept responsibility for the fault; and
• recognise the impact this had on the complainant.
59. We also refer councils to the Scottish Public Service Ombudsman’s guidance on apologies which says apologies should:
• be personal and written for the specific occasion;
• express empathy; and
• acknowledge the effect the problem had on the complainant.
60. I am not satisfied the Council’s apologies to Mr and Mrs X were suitable. Mr and Mrs X clearly set out how the failures by the Council affected them and made them feel. However, the Council’s first apology apologised for the “time and trouble” caused by having to complain. The second apology referred to just the “distress” caused. In my view, this did not properly recognise the distress, inconvenience and frustration caused by the failures identified above.
61. I am also not satisfied that an apology was a sufficient remedy for the injustice caused to Mr and Mrs X. How the Council described Mr and Mrs X in its social care records and the discrimination found by the stage three panel caused them significant distress. This was also the third time Mr and Mrs X had complained about similar records about them. Mr and Mrs X were also caused significant inconvenience and frustration by the accepted failures with the Council’s direct payment system and the delays in responding to their data protection requests.
62. I am satisfied the impact on Mr and Mrs X justifies a financial remedy. While the Council offered Mr and Mrs X £150 in response to my enquiries, I am not satisfied that adequately recognises the distress to them.
63. The evidence shows the Council has taken proportionate action to review and improve its social care services for children. It has sought advice and challenge from outside the Council and has improved its processes. It is not our role to tell Council what policy or procedures it should have, we could only recommend the Council consider what improvements to make. The Council has already done this, so I do not need to repeat the recommendations of the statutory investigation.
64. I am also satisfied that the Council made improvements around its risk assessment for school transport, as it agreed to following the statutory investigation. However, this coincided with other problems with the Council’s transport company. These are subject to ongoing review both by the Council’s Audit Committee and external auditors. This is the appropriate forum for those wider problems to be considered.

Timescales

65. The evidence shows there was an unexplained delay in responding to one of Mr and Mrs X’s complaint between July and August 2020. The stage one complaint response was sent outside the 20-day time limit. This was fault. However, I am satisfied this delay did not cause Mr and Mrs X a significant injustice, since it did not delay the escalation of their complaint to stage two.
66. There were also delays at stages two and three of the statutory complaints process:
• The Council sent its stage two response four weeks later than it should have done.
• The stage three panel took place four days later than it should have done.
• The Council sent its stage three decision letter three days later than it should have done.
67. While the delays at stage three were short, the Council still failed to comply with the statutory timescales and I am satisfied that was fault. However, I am not satisfied those delays caused an injustice to Mr and Mrs X.
68. The delay at stage two was more significant. This is partially explained by personal difficulties for the Investigating Officer which delayed their report and were outside the Council’s control. However, there was a six-week gap between the stage two report and the Council’s decision letter to Mr and Mrs X. This was within the control of the Council. Therefore, I am satisfied this delay was avoidable and so was fault. This caused some additional, avoidable frustration to Mr and Mrs X.

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Agreed action

69. Within one month of my final decision, the Council will:
• Properly apologise to Mr and Mrs X for the injustice caused by the faults it accepted during the statutory complaints process and for the delays in that process. The apology should fully recognise the effects on Mr and Mrs X.
• Pay Mr and Mrs X £500 each to recognise the distress, inconvenience and frustration it caused them.
70. Within three months of my final decision, the Council will review how it carries out and monitors statutory complaint investigations to ensure it complies with the statutory timescales.

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Final decision

71. I have completed my investigation. While the Council properly investigated Mr and Mrs X’s complaints, it did not properly apologise or recognise the impact on them of the failures it accepted. The Council should apologise fully, pay Mr and Mrs X an improved financial remedy and review how it manages statutory children’s complaints.

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Parts of the complaint that I did not investigate

72. I have not investigated Mr and Mrs X’s complaint the Council took too long to issue an amended EHC plan following the November 2018 review. Mr and Mrs X’s complaint about this is late and we can only consider late complaints if we decide there are good reasons to do so. While Mr and Mrs X were pursuing increased social care for Y from the Council, there is no evidence Mr and Mrs X complained about the delays to Y’s EHC plan before their complaint to the Ombudsman in 2021. I am satisfied Mr and Mrs X could have complained about these delays sooner and there are not good reasons to consider their complaint about these delays now.

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Investigator's decision on behalf of the Ombudsman