Summary: The Council investigated Ms X’s complaint about her child, Y’s, social care through the children’s statutory complaint procedure. In its complaint response, the Council accepted it delayed assessing Y and providing them with social care provision, which was fault. The Council has apologised. It has agreed to make a payment to Ms X to recognise the impact of its failings.

The complaint

1. Ms X complained under the children’s statutory complaint process. She complained the Council delayed carrying out a social care assessment of her child, Y, and failed to put suitable social care provision in place to meet Y’s needs. She said this resulted in Y missing out on social care provision and their Education Health and Care (EHC) Plan not containing social care provision. Ms X wants the Council to compensate her for the impact of the missed provision and act on the findings of her complaint.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. 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(1), as amended)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

Previous investigations

6. We have previously found the Council at fault for not investigating Ms X’s complaint under the children’s statutory complaint process and then delaying its investigation under the process. I have not investigated these aspects of Ms X’s complaint as we have already done so.

SEN Tribunal

7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
9. Part of Ms X’s complaint to the Council concerned the social care content of Y’s EHC Plan and subsequent mediation with the Council. Ms X appealed this to the Tribunal in January 2023. I cannot investigate this part of Ms X’s complaint.

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How I considered this complaint

10. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
11. Ms X and the Council have had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

The children’s statutory complaints procedure

12. 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.
13. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
14. 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.
15. 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.
16. 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.
17. 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.

No reinvestigation if process complete and not flawed

18. 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.
19. 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.

Education, Health and Care (EHC) Plans

20. 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. 

Child in Need

21. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
22. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

Background

23. Ms X’s child, Y, is a disabled child in need. Ms X asked the Council to carry out a children and family assessment of Y in 2022. The Council issued an EHC Plan for Y in November 2022. Ms X appealed the content of the EHC Plan to the Tribunal in January 2023, including the social care element of the Plan. Ms X also complained to the Council about a delay in assessing Y’s social care needs and failure to put the resulting social care in place.
24. In late 2023 we found the Council at fault for not investigating Ms X’s complaint under the children’s statutory procedure. The Council agreed to investigate Ms X’s complaint under the procedure. In early 2025 we found the Council at fault for delaying investigating Ms X’s complaint under the procedure.

What happened

25. The Council allocated Ms X’s complaint to an investigating officer (IO) and independent person (IP) on 12 December 2023. Ms X met with the IO and IP on 12 January 2024. A few days later the IO sent Ms X a proposed statement of complaint. Ms X confirmed the statement of complaint on 17 April 2024. The IO acknowledged this delay was due to Ms X’s personal circumstances. The agreed statement of complaint can be summarised as, the Council:
1. Delayed carrying out a social care assessment of Y.
2. Failed to put social care provision in place from September 2022 and was not meeting Y’s social care needs.
3. Delayed responding to Ms X’s complaint and follow the statutory complaints procedure.
4. Failed to include social care advice in Y’s EHC Plan or engage in mediation about the Plan.
5. Failed to recognise disabled children as children in need on its forms.
6. Failed to put a personal assistant in place at Y’s school and delayed arranging direct payments.
26. The stage two complaint definition also included two wider complaints about the Council. Ms X complained the Council was not meeting the needs of disabled children in its area and lacked capacity within its social care team.
27. Ms X’s desired outcomes from the investigation were noted as:
1. An independent investigation into the Council’s failure to meet its duties.
2. Y’s EHC Plan to specify the training and experience of potential care workers.
3. Compensation for the lack of social care provision from September 2022 to January 2024.
4. Reimbursement of her legal costs.
5. Training for social care managers in their legal duties.
6. An apology from the director of children’s services.
28. The investigation was further delayed due to potential legal matters impacting the investigation. The IO issued their stage two report on 22 November 2024. The report noted an additional delay due to the IO’s own personal circumstances.
29. The IO upheld that the Council had delayed assessing Y’s social care needs, failed to put in place social care provision between September 2022 and January 2024, failed to engage in mediation with Ms X and failed to recognise disabled children as children in need on its forms. The IO made no finding on the Council’s complaint handling, they said this had been addressed by the Ombudsman’s decision in late 2023. They also made no finding on whether the Council gathered social care advice for Y’s EHC Plan as the IO said they had not seen Y’s EHC Plan.
30. The IO did not uphold whether the Council failed to put a personal assistant in place for Y at school and delayed making direct payments. The IO said there was no evidence the Council had said a personal assistant was available, rather the school had a pool of assistants if needed. The IO said, while direct payments were available, the evidence showed Ms X did not want to take these up.
31. On the wider complaint points the IO found the Council was not meeting the needs of disabled children in its area but made no finding on capacity in the Council’s children’s social care service.
32. The IP agreed with the IO’s findings and identified no issues with how the IO had conducted the investigation. The IO recommended the Council consider apologising to Ms X, provide Ms X with assurance that Y’s EHC Plan had been informed by Y’s needs and raise the issue with its forms with its quality assurance team.
33. The Council issued its stage two adjudication on 22 January 2025. It disagreed with the upheld findings that it had delayed assessing Y, failed to put social care provision in place and failed to engage in mediation. While it accepted its form failed to make it clear that disabled children were children in need, it said this was in one section. It agreed with all other findings. On the wider complaint points it said these were systemic issues and it was working to widen the reach and capacity of the service.
34. The Council said it was satisfied the wording in Y’s EHC Plan met Y’s needs and said its social care workers already received training in their legal duties. The Council said it saw no reason to pay Ms X compensation or apologise. It said Ms X’s view of Y’s needs differed significantly from the Council’s.
35. A stage three panel considered Ms X’s complaint on 11 March 2025. Following further information, the panel upheld the Council had delayed assessing Y and putting social care provision in place. The panel also upheld that the Council had failed to obtain social care advice for Y’s EHC Plan and failed to engage in mediation.
36. The panel agreed with the IO that the Council was not under a duty to provide a personal assistant for Y. On direct payments it found while Ms X had ultimately refused the direct payments, the Council had delayed making the referral. The stage three panel also upheld Ms X’s complaint that it was not meeting the needs of disabled children in its area but said it was not within its remit to make a finding on social care capacity.
37. The panel welcomed the work the Council had already undertaken to investigate the wider issues behind the failings and said the Council should apologise to Ms X. It said Ms X had a right of appeal over the content of Y’s EHC Plan.
38. The Council issued its response to the stage three panel on 31 March 2025. It accepted the panel’s findings in full and apologised to Ms X. It said it understood Ms X’s experience had since improved and that lessons had been learned from the issues raised. It said it had recently reorganised the service to improve future delivery and the issues raised would feed into that improvement. It confirmed it had amended its forms and offered Ms X £250 to recognise the impact of its failings. Ms X remained unhappy and complained to the Ombudsman.

My findings

Y’s social care

39. By the conclusion of stage three of the statutory process the Council had upheld Ms X’s complaint regarding Y’s social care assessment and provision. It accepted a delay assessing Y and implementing Y’s social care provision, along with issues with its forms which it rectified. I agree this was fault. While I am satisfied these parts of Ms X’s complaint were suitably investigated by the conclusion of the statutory process, the fault caused Ms X distress and time and trouble pursuing the matter, which the Council has not remedied. I have made a recommendation to remedy Ms X’s injustice below.

Y’s direct payments and personal assistant

40. The Council said it delayed making a direct payment referral for Y but that Ms X ultimately decided not to accept direct payments for Y. Both the stage two and stage three agreed the Council was under no duty to put a personal assistant in place for Y but had suggested one may be available at school if needed. I am satisfied the Council properly investigated these matters and so agree with its conclusion. While the Council delayed making the referral, this did not result in an injustice to Ms X as she opted not to accept the payments.

Scope of investigation

41. ‘Getting the Best from Complaints’ sets out what may and may not be complained about through the children’s statutory procedure. This generally includes decisions and services relating to individuals, not broader complaints such as the general adequacy of the Council’s children’s services.
42. The IO in Ms X’s complaint, and the stage three panel, investigated two wider complaints around how the Council met the needs of disabled children in its area and whether it was adequately resourced. Neither complaint falls under the scope of the statutory process. While it was open to the Council to include non-statutory matters, in this instance it does not appear to have been a deliberate choice by the Council to include these aspects of Ms X’s complaint in the complaint definition. It appears the IO included these without discussing the statement of complaint, and scope of investigation, with the Council. The Council failed to properly consider the statement of complaint. This resulted in findings on some aspects of Ms X’s complaints and not others, causing Ms X uncertainty over what could and could not be achieved through the statutory process.

Ms X’s desired outcomes

43. Ms X had several desired outcomes from her complaint, and I consider these have all either been met by the Council already or will be met by through my recommendations. The Council has carried out an independent investigation through the statutory complaint procedure and apologised to Ms X. Ms X has appealed Y’s EHC Plan to the Tribunal, which is the appropriate way for her to try and have the Plan changed to specify the training and experience of potential care workers. The Council has confirmed its staff receive regular training in their duties. I have set out my recommendations below for a symbolic payment to Ms X to reflect the impact of the delayed social care assessment and provision on Ms X and her family. This recommendation is in line with the Ombudsman’s Guidance on Remedies.
44. Ms X also asked for a reimbursement of her legal fees. Neither the statutory process nor a complaint to the Ombudsman requires legal representation. It was Ms X’s choice to pay for a solicitor, and we would not look to reimburse any fees.

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Action

45. Within one month of the final decision the Council has agreed to:
1. Pay Ms X £500 to reflect the distress caused by the Council’s delay carrying out a social care assessment of Y and delivering the social care provision.
2. Pay Ms X £500 to reflect the time and trouble spent pursuing the matter with the Council.
46. Within three months of the final decision the Council has agreed to consider the Ombudsman’s guidance on the statutory complaints procedure and review how it agrees statement of complaint when considering both statutory and non-statutory parts of a complaint.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman