Summary: Mr X complained about the Council’s handling of his son, Y’s care. He also complained about delays in complaint handling. Mr X said this distressed him and Y did not receive the respite care specified in his Education, Health and Care Plan. The Council was at fault. It delayed completing the complaint process and Y missed respite provision. This frustrated Mr X and he was put to time and trouble to complain. The Council has agreed to apologise, make a financial payment and provide guidance to its staff.

The complaint

1. Mr X complained about the Council’s handling of his complaint about his son, Y’s care. He also complained about delays in the complaint handling. Mr X said this distressed him and Y did not receive the respite care specified in his Education, Health and Care (EHC) Plan.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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

5. I read Mr X’s complaint and spoke to him about it on the phone.
6. I considered information provided by Mr X and the Council.
7. Mr X and the Council had the opportunity to comment on a draft of this decision. All comments were considered before this decision was issued.

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What I found

Background information

8. 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. 
9. 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.
10. 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.
11. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
12. 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.
13. Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
14. The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days where required.
15. 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.
16. 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, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
17. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.
18. In February 2022 the Ombudsman issued practitioner guidance on the statutory children’s complaints process.

What happened

19. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
20. Y has complex additional needs. Mr X complained to the Council in December 2021. He complained Y’s respite provision ended in October 2021 due to staffing issues and felt the Council should have pre-empted this issue. Mr X set out his desired outcomes from the complaint.
21. The Council responded to the complaint in February 2022. The Council noted it did consider alternatives, but they were not suitable. The Council acknowledged staffing issues facing the care sector nationally.
22. Mr X was not happy with the stage one response and asked the Council to escalate his complaint to stage two. He said the response did not achieve the outcomes he wanted and felt this could only be achieved at a higher level.
23. The Council reinstated the respite provision in April 2022.
24. The Council assigned an IO and an IP to complete the stage two investigation. The IO met Mr X in July 2022.
25. The IO and IP provided their reports in October 2022. The investigation partly upheld Mr X’s complaint but recognised causes external to the Council impacted this matter.
26. The Council sent its adjudication letter to Mr X in June 2023. The Council apologised for the delay and lack of respite. The response recognised some issues were out of the Council’s control. The Council offered to fund Mr X’s costs incurred sourcing any respite for Y.
27. Mr X was not happy with the stage two response and asked the Council to escalate his complaint to stage three at the end of June 2023.
28. The Council held the stage three panel meeting in August 2023. Mr X attended the meeting and made representations. The panel agreed with the stage two reports and partially upheld the complaint. The Council recommended remedy payments to Mr X. These would be to acknowledge the delays, Mr X’s time and trouble and the distress for the missed provision.
29. The Council sent its adjudication letter to Mr X in August 2024. The Council offered Mr X:
• £500 for the delays in providing a complaint response.
• £500 for Mr X’s time and trouble.
• £300 for the distress of the missed provision.
30. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to apologise, make a suitable payment and build capacity in its workforce.
31. In response to my enquiries the Council explained the delays were due to staffing issues and errors. The Council stated external factors including government restrictions impacted this case.

My findings

32. The statutory children’s complaint procedure is a statutory procedure the Council has to follow. As set out in paragraph 15, where a council has investigated a complaint under the statutory children’s complaint process, we would not normally re-investigate it unless we consider the investigation was flawed.
33. The IO conducted a thorough and detailed investigation on the matters in the statement of complaint. The IP oversaw the investigation. The IO spoke to Mr X and the Council officers involved in this matter. The IO also considered relevant documentation relating to Mr X’s complaint.
34. The IP addressed each of Mr X’s complaints and provided a decision on whether to uphold the complaint. Each decision was supported by the evidence available.
35. The stage three review considered the adequacy of the stage two investigation and reached findings on each element of Mr X’s complaint. It considered Mr X’s comments and representation.
36. There was no fault in how the Council completed the statutory complaint procedure. I recognise this situation has been distressing for Mr X, but the decisions were taken without fault. I do not find fault with the Council for how it carried out the statutory complaints process and I do not propose to reinvestigate the complaint.
37. I have therefore reviewed the Councils recommendations and remedies considering the fault found.
38. The Council has accepted fault regarding the significant delays involved in this case.
• The Council had 10 working days to complete stage one in the process. It took 67 days, a delay of 57 days.
• The Council had 65 working days to complete stage two in the process. It took 324 days, a delay of 259 days.
• The Council had 50 working days to complete stage three in the process. It took 280 days, a delay of 230 days.
39. The Council delayed this case by over two years. This is fault, frustrating Mr X and he was put to time and trouble to complain.
40. The Council offered Mr X a financial payment to acknowledge the injustice caused by the Council fault. The Council offered £500 for the delays resolving the complaint and £500 for Mr X’s time and trouble. This is a suitable remedy for the injustice caused by the Council fault.
41. The Council offered Mr X £300 for the distress of missed provision. Having considered the Council’s reasoning for this offer, I do not consider this sufficient for the injustice the Council fault caused.

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Agreed action

42. To remedy the outstanding injustice caused to Mr X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this final decision:
• Apologise to Mr X and Y for fault identified in this case. This apology should be in accordance with the Ombudsman’s guidance Making an effective apology.
• Pay Mr X the £500 it offered as an acknowledgement of the time and trouble he has spent pursuing this complaint.
• Pay Mr X the £500 it offered as an acknowledgement of the frustration the delays caused.
• Pay Mr X a symbolic payment of £1,000 to acknowledge the missed provision and the distress this caused to Mr X and Y.
• Remind all relevant staff who deal with statutory children’s complaints about the Council’s, and individual officer’s, duties at each stage of the statutory children’s complaint process. These are set out in the statutory guidance, ‘Getting the Best from Complaints’.
43. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

44. I have found fault by the Council, which caused injustice to Mr X and Y. The Council has agreed to the recommendations to remedy that injustice. I have therefore completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman