Summary: Mrs X complained about the way the Council handled her granddaughter’s behavioural and educational needs, that the Council failed to support her as a special guardian, and delayed responding to her complaint. Mrs X said the lack of support caused unnecessary distress, stress, and made her ill. She also said her granddaughter lost out on educational support. Largely we do not find the Council at fault. However, we find the Council at fault for delays handling Mrs X’s complaint. The Council has agreed to make a payment to Mrs X to reflect the injustice caused.

The complaint

1. The complainant, who I refer to here as Mrs X, complains about the way the Council handled the behavioural and educational needs of her granddaughter (C). Specifically, she complains that:
1. the Council failed to tell her she had a right to appeal its decision not to do an Education, Health and Care (EHC) plan for C;
2. the Council delayed issuing the final EHC plan;
3. C was meant to see a behavioural support specialist in September 2020 but this did not happen;
4. the Council failed to support her as a special guardian; and,
5. the Council delayed responding to her complaint.
2. Mrs X says the lack of support has caused unnecessary distress, stress, and has made her ill. She says she has had to fight at every stage. She says it has also cost her time and trouble. She says it has had a significant impact on her family, and C has lost out on valuable educational support at a critical time in C’s educational career.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)

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How I considered this complaint

6. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
7. I considered the relevant legislation, statutory guidance, and policies, set out below. I considered the Ombudsman’s published guidance during COVID-19 (‘Good administrative practice during the response to Covid 19’). I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Education, Health and Care plans

8. Under the Children and Families Act 2014, when an Education, Health and Care needs assessment is completed by a council and it shows a need for special educational provision, the local authority must prepare and maintain an Education, Health and Care (EHC) plan.
9. If a council decides to complete an EHC needs assessment, it must do so according to the correct procedure and within the fixed timescales set out in law and detailed in the Code. If it decides that an assessment is not necessary, it must provide reasons and notify the parent, guardian, or young person of their right to appeal that decision.
10. The whole process of EHC needs assessment and EHC plan development, from the date an assessment is requested to the final EHC plan being issued, must take no more than 20 weeks.

Special Guardians

11. Under a Special Guardianship Order, the courts appoint someone (often extended family members, like grandparents) to be a child’s special guardian. They then become responsible for all day-to-day decisions about the child.
12. The Council has a leaflet about special guardianship on its website. This outlines the support services the Council offers. It says these support services include “arrangements” with PAC-UK, which is an agency for adoption, permanency and support. The leaflet says PAC-UK offers up to six free counselling and advice sessions for special guardians, and access to their advice line.
13. The leaflet also says the Council will signpost special guardians to other support services that may be available.

Complaint handling

14. The Council’s complaints policy says the Council should send a stage one complaint response within ten working days, and a stage two complaint response within 25 working days.

What happened

15. Mrs X is a special guardian for her granddaughter, C.
16. In January 2020, Mrs X asked the Council to do an Education, Health and Care (EHC) needs assessment for C. The Council decided an EHC assessment was not necessary. It sent Mrs X a letter with its decision and set out how to appeal its decision.
17. In March, C’s school (School A) contacted the Council asking for involvement from its behavioural team, due to C’s behaviour. The Council met with School A that month. At this time, C was not in school because of national lockdowns (due to COVID-19). The Council and School A agreed that behavioural support would be available to C once she returned to school.
18. In July, the Council arranged an inclusion consultation with School A to discuss and plan for C’s next steps and her return to school in September. At this meeting, concerns were raised about involving the behavioural team at this stage as it would require C to bond with a new adult as the end of term approached. All parties were aware that C has issues trusting and bonding with new adults/professionals.
19. The Council and School A decided that the Council’s behavioural support specialist would be available to C when the new school year started in September.
20. At this time, the Council sent Mrs X a consent form so she could consent to the Council’s behavioural support specialist observing C at School A.
21. In September, a week after the term started, C was excluded from School A. The Council arranged a placement for C at School B, where she started two weeks later.
22. Also in September, Mrs X complained to the Council. The Council held a meeting with Mrs X in mid-November to discuss her complaint at stage one. The Council agreed certain actions as a result.
23. Mrs X asked for her complaint to be dealt with at stage two.
24. In January 2021, the Council told Mrs X it would investigate her complaint at stage two. It said it would start the Education, Health and Care (EHC) process.
25. In May, the Council issued C’s final EHC plan.
26. Between January and July, the Council kept in contact with Mrs X. It explained that there was a large backlog of complaints due to COVID-19, so it would not meet its timescales for responding to her complaint. It apologised each time.
27. The Council sent its stage two complaint response to Mrs X in July. It apologised again for the delay responding to her complaint and the frustration the delay caused. The Council said it had followed up the actions agreed at the first meeting.
28. Mrs X then brought her complaint to the Ombudsman.

Analysis

Informing Mrs X of her appeals rights

29. Mrs X complains that the Council failed to tell her she had a right to appeal its decision not to do an Education, Health and Care (EHC) plan for C (part a of the complaint).
30. I have seen the Council’s letter to Mrs X from February 2020. This set out the Council’s decision not to do an EHC assessment. It said Mrs X could appeal the decision, and gave details on how to do this.
31. For this reason, I find the Council did tell Mrs X that she had a right to appeal that decision. Therefore, I do not find the Council at fault.

Delay issuing the final Education, Health and Care plan

32. Mrs X complains that the Council delayed issuing C’s final EHC plan (part b of the complaint).
33. As I have said above, the whole process of EHC needs assessment and EHC plan development, from the date an assessment is requested to the final EHC plan being issued, must take no more than 20 weeks.
34. I have seen an email Mrs X sent the Council dated 18 December 2020 telling the Council it needed to make sure the EHC process was ‘reopened’. I consider this is the date an assessment was requested. The Council issued C’s final EHC plan in May 2021, 21 weeks later.
35. I do not consider one additional week to be significant enough to constitute fault, particularly when I take into account the background of the COVID-19 pandemic. For this reason, I do not find the Council at fault.

Behavioural support specialist

36. Mrs X complains that C was meant to see a behavioural support specialist in September 2020 but this did not happen (part c of the complaint).
37. Firstly, Mrs X says the Council told her in March 2020 that its behavioural support specialist would observe C in School A and make a decision around what support C needed. Mrs X says the Council did not send her a consent form for this observation until July 2020. She questions why there was such a delay.
38. The Council had a meeting with School A in March 2020. C was not in school between March and June 2020 because of the national lockdown due to COVID-19. The Council then arranged the inclusion consultation which took place early July.
39. I do not consider there was any undue delay here by the Council. No one could observe C in school between March and June because of the lockdown. The Council and School A agreed at the meeting in July that the Council’s behavioural support specialist would be available to C when the new school year started in September. This was because of C’s issues trusting and bonding with new adults/professionals. This seems entirely appropriate, given C’s needs and the limited time left at school in July. For these reasons, I do not find the Council at fault here.
40. Secondly, Mrs X says C was meant to see a behavioural support specialist in September 2020 but this did not happen.
41. The behavioural support specialist was due to see C at School A in September 2020. C was excluded from School A within a week of this term starting. This meant the behavioural support specialist could not observe C in School A.
42. The Council says School B has its own policies and protocols for managing behaviours. This is the reason C was not observed by the Council’s behavioural support specialist at School B.
43. I do not find the Council at fault here.

Special guardian support

44. Mrs X complains that the Council failed to support her as a special guardian (part d of the complaint). Mrs X acknowledges that the Council offered her support from PAC-UK, which she accepted. She says the Council no longer funds support from PAC-UK. Mrs A also says she asked the Council to pay for a placement for her on a PAC-UK course, which it has agreed to do.
45. The Council’s leaflet (referred to above) says as part of its arrangements with PAC-UK, special guardians can access six free counselling and advice sessions. I find this happened. I also note that the Council’s complaint response says Mrs X attended its special guardians’ support group.
46. In November 2020, the Council emailed Mrs X about special guardian support services she could access. It said it was not in a position to continue its contract with PAC-UK. The Council said there was ongoing support available from the special guardians’ support group. The Council also told Mrs X she could self-refer to Grandparents Plus (a support network).
47. The Council’s leaflet also says the Council will signpost special guardians to other support services that may be available. I have seen a document the Council emailed Mrs X in June 2020 about additional support services available during COVID-19. I find the Council signposted Mrs X as it should have.
48. I also find that the Mrs X and C have had a special guardianship social worker, along with involvement from other relevant Council departments.
49. I find that the Council has provided support and signposted Mrs X to other agencies for support as it should have. I therefore do not find the Council at fault.

Complaint handling delays

50. Mrs X complains that the Council delayed responding to her complaint (part e of the complaint).
51. The Council accepts that it did not acknowledge Mrs X’s complaint in the first instance. It accepts it did not organise a stage one complaint meeting until November (over seven weeks later).
52. In mid-December 2020, Mrs X gave her reasons for asking for a stage two complaint response. The Council acknowledged this shortly after but did not provide a stage two complaint response until the end of July 2021 (30 weeks later).
53. I have considered the Ombudsman’s published guidance for councils during COVID-19 (‘Good administrative practice during the response to Covid 19’). This says that delays are understandable. It advises councils to be realistic with complainants about the timescale for complaint responses, and to let complainants know if there is going to be further delay.
54. I find that the Council told Mrs X there would be significant delays in responding to her complaint. It maintained contact with Mrs X, providing updates and apologising for the delay. It also explained the reasons for the delay (the impact of COVID-19, staff shortages, and extremely high workloads). This is in line with Ombudsman guidance.
55. However, I find the delays here were significant. It took over ten months for the Council to complete its handling of Mrs X’s complaint. For this reason, I find the Council at fault. This fault caused Mrs X injustice in that she went to time and trouble contacting the Council for updates and waiting for responses.
56. The Council acknowledges the injustice caused here. It has suggested it makes a payment to Mrs X of £300 to reflect the time and trouble she went to. I consider this is a satisfactory remedy, and is in line with the Ombudsman’s published guidance on remedies.

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Agreed action

57. Within four weeks of this decision, the Council has agreed to make a payment of £300 to Mrs X as it suggested (see above). This is to remedy the injustice caused by significant delays in complaint handling.
58. The Ombudsman will need to see evidence this action has been completed.

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Final decision

59. I have completed my investigation. I do not uphold parts a to d of Mrs X’s complaint. This is because there is no fault.
60. However, I uphold part e of the complaint because I find fault causing injustice. The Council has agreed to take action to remedy the injustice caused by that fault.

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Investigator's decision on behalf of the Ombudsman