Summary: Miss X complains about the way the Council handled her grandson’s special educational needs and her subsequent complaint. Miss X says this caused stress and distress, and took time and trouble. She says the lack of support has meant she and her husband are just existing. The Ombudsman finds fault causing Miss X injustice. The Ombudsman is satisfied with the action the Council has taken so far to remedy the injustice, but the Council has agreed to apologise and take further action to make sure there is no recurrence. The Ombudsman does not find fault for the part of Miss X’s complaint about the Council failing to arrange a stage three review of her complaint. The Ombudsman cannot investigate the part of Miss X’s complaint about delays issuing her grandson’s Education, Health and Care plan because it is premature.

The complaint

1. The complainant, who I refer to here as Miss X, complains about the way the Council has handled her grandson’s special educational needs and her subsequent complaint. She complains that:
1. the Council delayed issuing her grandson’s final Education, Health and Care plan;
2. the Council failed to provide education for her grandson for two years when he was out of school;
3. the Council admitted faults but still failed to provide the help and support promised;
4. the Council failed to arrange a stage three review panel; and;
5. there were delays in handling her complaint.
2. Miss X says this has caused stress and distress, and taken time and trouble. She says the lack of support has meant she and her husband are just existing.

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What I have investigated

3. The Ombudsman cannot investigate complaints that are more than 12 months after the complainant first had knowledge of the problem, unless there are good reasons to do so.
4. In this case, Miss X complained in June 2017. The Council did not complete the complaints process until June 2019. Miss X then brought her complaint to the Ombudsman without delay.
5. Overall, I do not consider that Miss X could have brought her complaint to the Ombudsman any quicker. For this reason, I have decided there are good reasons to exercise our discretion and investigate this complaint back to June 2017.
6. I have investigated parts b, c, d and e of Miss X’s complaint. The final section of this statement contains my reason for not investigating part a of the complaint.

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The Ombudsman’s role and powers

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. We cannot question whether a council’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)
9. 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)
10. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
11. 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)
12. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
13. 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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How I considered this complaint

14. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
15. I considered the relevant legislation and statutory guidance, set out below.

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What I found

What should have happened

Children’s Social Care complaints

16. The government published statutory guidance, ‘Getting the Best from Complaints’, which sets out a three-stage procedure that councils follow when considering certain complaints about children’s social care services.
17. At stage one, the council considers the complaint and should try and resolve the complaint as quickly as possible. The council should also try and agree a way forward with the complainant.
18. At stage two of the procedure, the council appoints an independent Investigating Officer to investigate the complaint, and an Independent Person who is responsible for overseeing the investigation. The council will appoint a senior manager to adjudicate on the findings.
19. The guidance sets out timescales within which certain actions should be completed.
20. The guidance says that once a complaint is made, the council should make an initial attempt to resolve matters within ten working days, unless an extension is agreed. The guidance says the maximum time a stage one should take is 20 working days. After this deadline, a complainant can ask for the complaint to be dealt with at stage two.
21. If the complaint is not resolved, or if parties agree, then the complaint should be investigated at stage two of the complaints procedure. Stage two begins either when the complainant asks for it, or where parties agree that stage one is not appropriate.
22. The guidance says that a council has 25 working days to produce the Investigating Officer’s report and its own adjudication on the Investigating Officer’s findings.
23. The guidance says this can be extended to 65 working days because in certain circumstances 25 working days may not be sufficient or practical. It says this includes complaints that involve several agencies. The guidance says the important thing is to maintain dialogue with the complainant.
24. The Investigating Officer’s report (stage two report) should include details of their findings (‘upheld’ or ‘not upheld’), and recommendations on how to remedy any injustice to the complainant. The guidance says the Investigating Officer should have access to all relevant records and staff. It says the Investigating Officer may interview staff and other people relevant to the complaint.
25. The purpose of the council’s adjudication on the Investigating Officer’s report is to give its response, its decision on each point of the complaint, and to identify any action to be taken (with timescales). The guidance says the Adjudicating Officer should make sure that any recommendations in the council’s adjudication response are implemented. It says the Complaints Manager should monitor the implementation and report to the Director on what action has been taken on a regular basis.
26. The complainant can then ask the council to convene an independent review panel. This forms the third stage of the complaints procedure. The complainant must ask for stage three within 20 days. The review panel will consider the adequacy of the independent stage two investigation.
27. The review panel should identify any injustice to the complainant where complaints have been upheld and recommend appropriate remedies. The panel should also recommend service improvements for the council, if appropriate.
28. After a stage two adjudication, a complaint can be further considered by early referral to the Ombudsman in a limited number of cases, instead of a stage three review panel. Certain criteria need to be met in order to do this.
29. If a council has investigated something under this statutory procedure, the Ombudsman does not normally re-investigate the original complaints unless he considers that the investigation was flawed. Instead, he will look at whether a council properly considered the findings and recommendations of the independent investigation and review panel.
30. The guidance places a duty on the council to act quickly throughout the procedure to make sure the complaint is dealt with as quickly as possible.

Duty to provide alternative education

31. The Education Act 1996 says that education authorities (councils) must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise.
32. In 2013, the government published statutory guidance for councils about alternative provision. The guidance says where a council has identified that alternative provision is needed, it should make sure it is arranged as quickly as possible and that it appropriately meets the needs of the child.
33. The guidance says the provision should be in place by the sixth day of absence for excluded pupils.

What happened

34. Miss X has had a special guardianship order for her grandson, B, since he was a young child. B has special education needs.
35. In May 2017, B was permanently excluded from school.
36. In July, Miss X complained to the Council about a lack of support. The Council acknowledged her complaint and said it would respond in ten to 20 working days.
37. In August, Miss X chased the Council for a response. The Council apologised for the delay. At that point, Miss X clarified that her complaint was about lack of support and lack of education for B, who still did not have a school placement.
38. In September, Miss X chased the Council for a response. The Council apologised for the delay.
39. In October, the Council sent its stage one response to Miss X’s complaint. The Council said it had been trying to find B a suitable school placement. The Council apologised because it should have reassessed B’s needs much earlier.
40. In November, Miss X told the Council it had not responded to the part of her complaint about lack of support. After further emails between Miss X and the Council, in December the Council accepted Miss X’s request for a stage two consideration of her complaint.
41. In January 2018, the Council appointed an Investigating Officer (IO) and an Independent Person to investigate Miss X’s complaint at stage two.
42. In February, the IO met with Miss X. He decided that it might be more beneficial if the Council could meet with Miss X.
43. In March, the Council told the IO to go ahead with his investigation because managers did not respond to the invitation to the meeting.
44. In August, the IO completed his stage two report. He noted that the manager, assistant manager, and two team members of the Council’s Special Educational Needs (SEN) team had declined to be interviewed as part of his investigation. The IO said senior management said, “an investigation was not appropriate”. The SEN team gave a brief written response to the IO’s questions.
45. The IO upheld 16 parts of Miss X’s complaint, made no finding on two parts, and did not uphold one part. He recommended that the Council took certain actions. These included actions to remedy the injustice to Miss X (including apologies and a financial remedy) and wider actions within the SEN team.
46. The Independent Person’s report noted that the investigation had exceeded the permitted timescales. He said the IO had explained the delay to Miss X and had apologised.
47. In November and December, the Council apologised to Miss X for the delay in sending its stage two adjudication.
48. At the end of December, the Council sent Miss X its stage two adjudication. It apologised for the delay. The Council agreed with the IO’s findings. It offered Miss X a payment which reflected the delays in handling her complaint, delays in assessing B’s needs, that B had been out of school effectively for one term, and Miss X’s time and trouble in pursuing the complaint.
49. The stage two adjudication largely followed the IO’s recommendations. The Council apologised. It said it would:
• raise certain recommendations at the next SEN management meeting;
• meet Miss X and discuss the financial remedy in more depth; and,
• make a note on B’s file and confirm when it was done, no later than the end of January 2019.
50. The adjudication said Miss X could ask for a stage three review of her complaint but needed to do so within 20 days.
51. Between January and June 2019, there was ongoing communication between Miss X and the Council.
52. In June 2019, the Council met with Miss X. It agreed a significantly larger payment, which reflected all of the IO’s recommendations. The Council agreed five actions, including looking at support and respite. At the end of June, a Council officer emailed Miss X with an update following the meeting. This said it would work with Miss X around respite and would let her know about support.
53. In July, a Council officer sent an email to Council managers which said how the agreed actions had been completed. Also in July, the Council paid Miss X the agreed increased payment.
54. In August, Miss X told the Council she was getting advice from an advocate about progressing to stage three.
55. In September, the Council did not agree it was appropriate to go to stage three. It said the stage two investigation upheld her complaint, the Council apologised and made a payment to her. It signposted Miss X to the Ombudsman.
56. Miss X then complained to the Ombudsman.

Analysis

57. As I have said above, if a council has investigated something under the statutory complaints procedure, the Ombudsman does not normally re-investigate the original complaints unless he considers that the investigation was flawed. Instead, he will look at whether a council properly considered the findings and recommendations of the independent investigation.
58. In large part, I am satisfied that the Council completed the Investigating Officer’s (IO) recommendations. I am also satisfied with the Council’s apologies and financial remedy for the injustice caused by the faults identified by the IO.
59. However, I find that the Council did not act on all of the IO’s recommendations.
60. The IO recommended that the Council:
1. remind all head teachers of their duties to invite Local Education Authority representatives to Education, Health and Care plan reviews;
2. write to all families (of children with SEN) about the legislation which does not require the Council to attend annual reviews, and the letter needs to say how the Council will monitor annual reviews when it is absent for those reviews;
3. be clear with families about allocation of workers to reduce the potential for unrealistic expectations about service provision;
4. make an appropriate note on B’s file and tell Miss X it had been done;
5. offer Miss X details of appropriate training courses and support groups; and,
6. pay for Miss X’s membership of Grandparents Plus.
61. The Council’s stage two adjudication said recommendations one, two and three would be discussed at the next SEN meeting.
62. I have seen no evidence that the Council did this.
63. The Council says the Adjudicating Officer has since left the Council. It says its customer relations team was under-resourced at the time, so not all learning actions were monitored. It says this team is now fully staffed, and it has a new complaints database to ensure actions arising from complaints are monitored to completion. The Council also says the SEN service was undergoing a restructure, and its systems and procedures were revised as part of that.
64. The Council accepts that it did not complete recommendations one, two or three. This is fault.
65. For recommendation four, the Council’s adjudication said it would put a note on B’s file by the end of January 2019 and would tell Miss X when this was done.
66. I have seen no evidence that this has been done. This is fault. This caused uncertainty for Miss X, which is injustice.
67. The adjudication does not mention recommendations five or six. This is fault. I will address recommendations five and six below (in part c of the complaint).
68. Also, the Council’s adjudication failed to address two parts of the complaint that the IO upheld. This is fault. The guidance says a council must adjudicate on all parts of the complaint.
69. The Council says these were “inadvertent omissions”.
70. The IO recommended that for one of these complaints, the Council should apologise for failing to respond to Miss X’s emails. I have seen no evidence that this was done. This is fault and caused Miss X injustice.
71. I will now consider the individual parts of Miss X’s complaint.

Failure to provide education

72. Miss X complains that the Council failed to provide education for B for two years when he was out of school (part b of the complaint).
73. The Council’s stage one response said it should have considered reassessing B’s needs much earlier and apologised.
74. The IO said the Council admitted it took too long to understand B’s needs, so he found that the Council could potentially have offered an alternative educational placement before B was permanently excluded in May 2017.
75. The IO said this would have avoided B’s placement being split into three separate placements a week, which he said is the opposite of stable educational provision for someone with autism for whom change and transitions are difficult to manage.
76. The IO found that B was without a school placement from May 2017 to Oct 2017.
77. The Council’s adjudication acknowledged delays in assessing B’s needs and accepted that B was without formal education for effectively one term.
78. I agree with the IO that the Council is at fault for failing to provide education for B. This caused injustice to B because he missed out on education, but also to Miss X because of the time and trouble she spent chasing the Council to arrange B’s education.
79. I am satisfied that the Council has already remedied this through its apology and financial payment.
80. I note that Miss X complains that B was out of education for two years. The complaint agreed with the IO was that the Council failed to provide B with stable education when he was excluded from school. This is what the IO investigated. I cannot now change the complaint to say the Council failed to provide education for two years. This is because this complaint has already been investigated through the statutory complaints process.
81. If Miss X wants to pursue a fresh complaint with the Council about educational provision from October 2017 onwards, she can do this, but it cannot be considered as part of this complaint.

Failure to provide help and support

82. Miss X complains that the Council admitted faults but still failed to provide the help and support promised (part c of the complaint).
83. The IO found that the Council failed to offer Miss X help in accordance with the special guardianship order support plan granted in 2011. The IO found that the Council offered some help, but did not complete an assessment of Miss X’s needs. The IO therefore found that the Council did not offer her appropriate training courses or support groups.
84. The IO also found that the Council failed to provide respite for B. The IO said that Miss X and different Council professionals highlighted the need for respite. He said B’s final care plan says the Council will assist Miss X to access these services. The IO found this did not happen.
85. The IO also found that Miss X needed additional help and support between May and October 2017 when B was out of education. He said Miss X needed respite in 2017, and found no evidence this was robustly assessed. The IO found that the Council did not consider the immediate need for respite while it was securing B’s residential school placement.
86. The IO recommended that the Council offer Miss X details of appropriate training courses and support groups (recommendation five, as above – see paragraph 60) and pay for Miss X’s membership of Grandparents Plus (recommendation six).
87. As I have said above, the Council’s adjudication does not mention recommendations five or six.
88. There were five agreed actions as a result of the meeting with Miss X in June 2019. Some of these actions were to do with training courses and support.
89. A Council officer emailed managers in July 2019 to say how these actions had been completed. The email was addressed to Miss X but there is no evidence this email was actually sent to Miss X: it was only sent to managers.
90. This is fault. This caused injustice to Miss X because she did not know the Council had completed these actions, and therefore did not know about the support and training available. Also, this caused further delay in communicating information to Miss X about the agreed resolution to her complaint.
91. Further to this, I have seen no evidence that the Council completed recommendation six (paying for membership of Grandparents Plus, a support group). This is fault. This caused Miss X injustice because this denied Miss X the opportunity for support.

Failure to arrange a stage three review panel

92. Miss X complains the Council failed to arrange a stage three review panel (part d of the complaint).
93. The guidance says a complainant has 20 days to request consideration of a complaint at stage three. The Council’s stage two adjudication sent in December 2018 told Miss X this.
94. There was then a meeting with Miss X in June 2019.
95. In August 2019, Miss X told the Council she was getting advice about a stage three. According to the information available to me, this is the first time Miss X told the Council she was considering requesting stage three. This is eight months after she was told she needed to request a stage thee within 20 days.
96. Miss X says she asked the Council questions about the stage three process but the Council did not respond, so she was out of time to request a stage three review.
97. I find that Miss X did not request a stage three review within the 20 days set out in the guidance. I find that Miss X could have asked for a stage three review while she waited for the Council to respond to her questions. I find that she did not need to wait eight months to ask for stage three.
98. For these reasons, I do not find the Council at fault.

Complaint handling

99. Miss X complains that there were delays in handling her complaint (part e of the complaint).
100. The IO upheld Miss X’s complaint that the Council’s stage one response was outside the ten to 20 days set out in the guidance. Miss X complained in June 2017 and did not get a response until October 2017. I agree with the IO that this is fault.
101. Then there was a delay between the Council acknowledging Miss X’s request for stage two (December 2017) and the IO’s report (August 2018). Before his investigation, the IO said it would be beneficial for the Council to meet with Miss X. A month later, the Council told the IO to continue his investigation because managers had not responded to the invitation to the meeting.
102. Further, the manager, assistant manager and two officers from the SEN team declined to be interviewed by the IO. At the time, the Council said that senior management said a stage two investigation was “not appropriate”, and only gave a brief written response to the IO’s questions.
103. I find this lack of engagement with the statutory complaints process is not in line with the guidance (see paragraph 24), and is therefore fault. This contributed to the delays in dealing with Miss X’s complaint.
104. The Council says those senior managers have now left the Council.
105. I have concerns about the way the Council treated this statutory investigation. The Council should have engaged and cooperated in line with the guidance.
106. There was then a delay in sending the stage two adjudication. The Council apologised for this (in November and December 2018). The guidance says that a council has 25 working days (up to a maximum of 65 days) to produce the Investigating Officer’s report and its own adjudication.
107. In this case, the Council accepted Miss X’s request for a stage two in December 2017. It sent its stage two adjudication in December 2018. This significant delay is fault.
108. There was then a delay between the stage two adjudication (December 2018) and the meeting with Miss X in which the parties reached an agreement about remedies (June 2019). This is fault.
109. The guidance places a duty on councils to act quickly to make sure that the complaint is dealt with as swiftly as possible. This did not happen at any stage in handling this complaint. A process that should have handled Miss X’s complaint quickly started with her complaint in June 2017 and was not completed until June 2019. This should not have taken two years. This is fault.
110. The Council says the delays were due to the customer relations team being under-resourced at that time.
111. These faults caused Miss X injustice because of the significant amount of time she had to wait for her complaint to be considered at stages one and two. She also spent time and trouble chasing the Council for responses.

Agreed action

112. I am satisfied that the Council’s apologies and financial remedy are suitable and largely reflect the injustice caused by the faults. They are in line with the Ombudsman’s published guidance on remedies. I am also satisfied that the Council now has a new system which should prevent any future delays in complaint handling and/or monitoring actions arising from complaints.
113. However, the Council did not act on all of the Investigating Officer’s recommendations. I find that the Council needs to take further action to complete the Investigating Officer’s recommendations and remedy the injustice caused by the faults.
114. Within four weeks of this decision, the Council has agreed to apologise to Miss X in writing for failing to send her the email in July 2019 about available support, which arose out of the meeting in June 2019 (see paragraph 89).
115. Within four weeks of this decision, the Council has agreed to apologise to Miss X in writing for failing to respond to her emails, as initially recommended by the Investigating Officer (see paragraph 70).
116. Within three months of this decision, the Council has agreed to complete the Investigating Officer’s recommendations four and six (see paragraph 60). The Council will write to Miss X within this time to confirm it has both arranged and paid for membership of Grandparents Plus, and put the note on B’s file.
117. Within six months of this decision, the Council has agreed to complete the Investigating Officer’s recommendations one, two and three (see paragraph 60). The Council says it can circulate a briefing note (for recommendation three). I suggest that it does this, and discusses the briefing note and the final decision at the next SEN management meeting.
118. Regarding the Investigating Officer’s recommendations one and two, the Council has agreed to contact head teachers and families. It says if it is not able to send information in the post, it will “inform everyone electronically”. The Council says it will do this within six months of this decision.
119. Further to this, the Council tells me it will update its guidance about annual reviews on its Local Offer website. This is positive.
120. Within three months of this decision, the Council has agreed to remind all staff (including senior officers) of their duty to cooperate with any statutory complaint investigation.
121. Within three months of this decision, the Council has agreed to share a copy of this decision with relevant staff in the complaints department and SEN department to make sure there is no recurrence of these faults.
122. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

123. I have completed my investigation. I uphold parts b, c and e of Miss X’s complaint. This is because there is fault causing Miss X injustice. The Council has agreed to take action to remedy the injustice.
124. I do not uphold part d of the complaint. This is because there is no fault.

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Parts of the complaint that I did not investigate

125. Miss X complains that the Council delayed issuing B’s final Education, Health and Care plan (part a of the complaint). Miss X says she has complained to the Council about this.
126. I have seen no evidence that Miss X complained about this specific issue to the Council in the stage one complaint or the statement of complaint which was agreed with the Investigating Officer at stage two.
127. As I have said earlier, the law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply.
128. I do not consider that the Council has had an opportunity to investigate this complaint or reply to it. It is for this reason that I consider this part of Miss X’s complaint is premature and therefore I have not investigated it.
129. The Council says it is happy to consider this part of Miss X’s complaint. Miss X may wish to make a new complaint to the Council about this issue. If Miss X is not satisfied with the Council’s response to this new complaint, she can bring this complaint to the Ombudsman.

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Investigator's decision on behalf of the Ombudsman