Summary: The Council failed to ensure Miss B’s son was provided with suitable full-time education, failed to provide Miss B with support in relation to her sons’ special educational needs, took too long to decide not to issue an Education, Health and Care plan and failed to tell Miss B how to escalate her complaints which significantly prolonged the complaints process. The Council has agreed to make payments and apologise to Miss B and her sons and take action to prevent similar failings in future.

The complaint

1. Miss B complains that the Council has:
• refused to remove a document from her son's social care records which contains false information;
• failed to provide her sons with support with their special educational needs;
• failed to provide her younger son with a full-time education;
• failed to support her family with their social care needs; and
• failed to properly deal with her complaints.

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What I have investigated

2. I have investigated matters relating to Miss B’s sons’ education since September 2017 and matters relating to support with the family’s social care needs since the beginning of 2017. I have not investigated earlier events or some of Miss B’s complaints about the actions of social workers for the reasons explained in the last section of this statement.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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 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)
5. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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. 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 report with Ofsted.

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How I considered this complaint

11. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

The law and statutory guidance

Special educational needs

12. 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.
13. If a parent asks for an EHC assessment for their child, the local authority must decide whether an assessment is necessary.
14. There is a right of appeal to the SEND (Special Educational Needs and Disability) Tribunal against a decision not to assess or not to issue a plan.
15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ says:
• The process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
• The Council should tell the parents of its decision to assess or not to assess within six weeks of the request.
• The whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
16. Section 2 of the Code of Practice says that the local authority must ensure children, young people and parents are provided with information and advice on matters relating to SEN and disability. To meet local needs, local authorities should provide the following forms of support through their Information, Advice and Support Service(s):
• Signposting to alternative and additional sources of advice, information and support that may be available locally or nationally
• Individual casework and representation for those who need it, which should include:
1. support in attending meetings, contributing to assessments and reviews and participating in decisions about outcomes for the child or young person
2. directing children, young people, parents and those who support and work with them to additional support services where needed, including services provided by the voluntary sector.
• Help when things go wrong, which should include:
1. supporting children, young people and parents in arranging or attending early disagreement resolution meetings
2. supporting children, young people and parents in managing mediation, appeals to the First-tier Tribunal, exclusions and complaints on matters related to SEN and disability
3. making children, young people and parents aware of the local authority’s services for resolving disagreements and for mediation, and on the routes of appeal and complaint on matters related to SEN and disability
• Provision of advice through individual casework and through work with parent carer support groups, local SEN youth forums or disability groups, or training events.

Alternative education

17. Parents have a duty to ensure their children of compulsory school age are receiving suitable full-time education. (Education Act 1996, section 7)
18. Councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age who, “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”. (Education Act 1996, section 19)
19. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 16(6))
20. Statutory guidance ‘Alternative Provision’ says while there is no statutory requirement as to when suitable full-time education should begin for children placed in alternative provision for reasons other than exclusion, councils should ensure children are placed as quickly as possible.
21. Councils must make reasonable enquiries, when notified by a school that a child has stopped attending, to satisfy itself the child is receiving suitable education. (Statutory Guidance ‘Children Missing Education’)
22. Our Focus Report, ‘Out of school…out of mind?’ (2016) gives guidance on how we expect local authorities to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. It says councils should:

• consider the individual circumstances of each case and be aware that, potentially, a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Statutory complaints procedure

23. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The first stage is a response to the complaint from the department concerned. The second stage is an investigation and report carried out by someone independent of the department and with independent oversight. The third stage is a Review Panel.
24. There are strict timescales for responses at each stage. A stage one response should be provided within 10 days of complaining. A stage two investigation should take no more than 25 days for a simple complaint and no more than 65 days if the complaint is more complex.

Background, key events and analysis

25. Miss B lives with her two sons who are now 16 and 22 years old. Miss B has a condition which makes it difficult for her to process written information. Her younger son, H, has the same condition, and has also been diagnosed with anxiety, selective mutism and a visual impairment. Miss B’s elder son, M, has a diagnosis of autism spectrum disorder.

Inaccuracies in the Council’s records

26. The Council’s records show that on 14 August 2017, Miss B telephoned social services about getting some support. The social worker recorded that Miss B sounded upset, and at the end of the call she said, “I might as well just kill the three of us”.
27. The Council visited Miss B straight away and then telephoned later that day. During that call, a social worker recorded that Miss B said that everyday she wakes up and feels she has to try not to kill herself.
28. The Council decided to make a safeguarding referral. It then decided to carry out a child and family assessment and make Miss B’s son, H, the subject of a child in need plan.
29. Miss B complained when she saw the child and family assessment. She said that she had not made the comments which the social worker had recorded. She believes the assessment is about another family because the name of the school in the assessment is not the school H attended, the name of the child’s mother in the assessment is not her name and she had also seen a different address in the Council’s records.
30. The Council accepts that it incorrectly recorded the name of H’s school in the child and family assessment and child in need plan, and that it incorrectly recorded Miss B’s middle name. This was fault. In another document in the Council’s records, it incorrectly recorded Miss B’s address. This was fault. The document has the correct house number and postcode but the road name is wrong. It appears that an officer misread the road name from a handwritten document. The Council has had no dealings with anyone else with Miss B’s first and last name, and there are no roads in the area with the name recorded on the document.
31. After considering the case files, I am satisfied that the child and family assessment and child in need plan is about Miss B’s family. The Council has explained to Miss B that it cannot remove the records which refer to Miss B harming herself or her children, but that Miss B can place a statement on the file recording her views about what was said. I do not consider the Council is wrong to retain its records and I have found no evidence of fault in the action it has taken to address Miss B’s concerns here.
32. The Council has corrected the school name and Miss B’s name in its records. It has apologised to Miss B and explained how it believes these errors occurred. I am satisfied with the action the Council has taken to address the errors in its records.

Special educational needs

33. Miss B considers both her sons need support with their special educational needs.
34. In March 2018, Miss B applied for H to have an EHC assessment. The Council received her signed request on 25 April. The Council initially refused to carry out an assessment but then conceded in June after Miss B appealed its decision. The Council then carried out an EHC assessment but decided on 2 August that H’s needs could be addressed from within the school’s/setting’s own resources without the need for an EHC plan.
35. Miss B appealed the Council’s decision to the SEND tribunal. The tribunal struck out the appeal because it considered Miss B did not make H available for observation by an Educational Psychologist in an educational setting. The Ombudsman cannot question the tribunal’s decision.
36. Miss B considers H’s school did not provide the information the Council needed and that was why she had to appeal its initial refusal to carry out an assessment. The Ombudsman cannot investigate complaints about schools and we will also not usually investigate matters which could be resolved by appealing. Once the right of appeal has been used, the Ombudsman cannot investigate. As Miss B appealed the Council’s decision to not carry out an assessment, the Ombudsman cannot investigate this aspect of Miss B’s complaint.
37. Miss B also considers the Council was wrong to decide not to provide an EHC plan before it received a speech and language therapy report. The Council says that the speech and language therapy advice was not received within the statutory timescales; it was received two days after Miss B appealed its decision. The Council says it reviewed the advice but it did not indicate a need for provision within an EHC plan. The advice was submitted to the tribunal for consideration. As explained, we will not usually investigate matters which could be resolved by appealing and cannot investigate once the right of appeal has been used. Miss B appealed the Council’s decision to refuse to provide an EHC plan and so we cannot investigate this aspect of Miss B’s complaint.
38. In May 2018, Miss B applied for M to have an EHC assessment. The Council carried out an assessment but decided on 25 January 2019 that his needs could be met from within his college’s own resources without the need for an EHC plan. The Council accepts that it delayed reaching its decision and has apologised for this. I consider it would be reasonable for Miss B to appeal to the SEND tribunal if she disagrees with the Council’s decision. I note that M decided in January 2019 that he did not want to continue attending college.
39. Miss B says that she had to pay an Independent SEND Advocate to support her to apply for the EHC plans and to appeal the Council’s decisions because the Council failed to provide the support she needed.
40. As explained in paragraph 16 above, councils have a statutory duty to provide parents with access to impartial information, advice and support about matters relating to a child’s special educational needs.
41. In March 2019, following a joint inspection, Ofsted and the Care Quality Commission found that the Council’s SENDIASS (SEND Information Advice and Support Service) was not fit for purpose. They said that the service did not operate independently of the local area and lacked the capacity to provide the support parents needed.
42. Miss B says that she kept asking the Council for help but was told that the SENDIASS officer was too busy. There is no reference in the Council’s records to Miss B specifically asking for support to apply for an EHC plan for M or H. But it seems unlikely that Miss B would not utilise free support if it was available. The Council’s records show that before Miss B appealed, she told the SENDIASS officer that she had chosen to pay for support from an Independent SEND Advocate because she felt let down by SENDIASS. The SENDIASS officer apologised and explained that it could no longer provide one to one intensive support. On the balance of probabilities, I consider it likely that Miss B sought advice and support from SENDIASS, but she was not provided with the level of support she needed and was entitled to. This was fault.
43. The Council says that Miss B refused support from the SENDIASS officer with H’s appeal. But the records show that Miss B did so after she was told that SENDIASS could not provide one to one intensive support and that it would have to step away if she received any support from the Independent SEND Advocate due to a conflict of interests. I consider Miss B had no alternative but to refuse support from SENDIASS with the appeal because it would not provide the level of support she needed.
44. As a result of the Council’s failings here, Miss B had to pay £1040 for SEND support.

Full-time education

45. H stopped attending school in May 2017 when he was 14 years old. Miss B says that he was refusing to go because he was being bullied by teachers and pupils. After Miss B declined some other options to get H back into education, it was agreed that he would attend a college from September 2017. He would be dual registered and on roll for both the school and the college.
46. In around November 2017, the college told H that it could not continue to provide him with five days of education each week and would be reducing it to three days per week.
47. Miss B then contacted the school who forwarded an email to her which it had received from the college. It explained that the Council had been told by Ofsted that an organisation providing full time education to five or more people under the age of 16 must be registered as an independent school. As the college was not registered as an independent school, it could be guilty of an offence if it provided full time education. It explained that the Council considered anything over 18 hours a week to be full time, and so it would be reducing its provision to three days per week.
48. The school told Miss B that it could not change the decision. The evidence suggests that it did not offer to provide any alternative education on the other two days each week until around a year later, in November 2018.
49. When the Council told the college that it could no longer provide full time education for students under the age of 16, I consider it should have satisfied itself that additional education was being provided to those students registered at the college. It did not do so; this was fault.
50. H stopped attending the college in November 2018. Miss B says that he was excluded. The Council says that H could have returned to the college but Miss B would not allow it.
51. In December, Miss B paid for H to attend a weekly tutoring session. The following month, the school agreed to pay for H to have five tutoring sessions each week. Each session lasted one hour and twenty minutes. The school says it gave Miss B several other options to get H back into education, but she would not agree to them.
52. The Council was aware of the situation but did not take any action to provide H with a suitable full-time education. This was fault. The Council says it decided not to take action because it was aware that Miss B was appealing the Council’s decision to refuse to provide an EHC plan for H and, if successful, an appropriate placement would be found for him. I do not consider this is reason for the Council to not fulfil its duty to provide H with a suitable full-time education.
53. As a result of the Council’s failings here, H did not have a suitable full-time education between November 2017 and June 2019. Miss B also paid £279 for tutoring sessions which should not have been necessary.

Social care support

54. The evidence I have seen shows that the Council did provide support to Miss B’s family, but not the level of support she considered she needed. The Council received a referral for early help support in October 2016. It provided some support to Miss B but then decided to close the case in January 2017. This was a decision it was entitled to reach.
55. In June 2017, H’s school made a referral to the Council because it was concerned that H was not attending school. The Council carried out home visits and liaised with the school to get H back into education. It also carried out a child and family assessment and implemented a child in need plan to support H and Miss B. It then decided in a meeting on 23 October 2017 that the family did not need any further support, mainly because H was settled at college, there were no concerns with Miss B’s parenting, and she was meeting H’s basic needs. I have found no evidence of fault with the way this decision was reached.
56. Miss B says that a social worker and someone from the college told her that this child in need meeting had been cancelled. I have not seen any evidence to support this. The Council’s records show that Miss B was told about the meeting but was reluctant to attend.
57. Following a meeting that the Council had with Miss B in July 2018 to discuss her ongoing complaints, it was agreed to provide Miss B with a family support officer. The officer visited Miss B on a regular basis and the Council’s records show that she provided support to the family. I do not consider the Council failed to support Miss B’s family with their social care needs.
58. Miss B says that she was told this officer was being provided to support H with his special educational needs, and so the Council should have provided an officer with experience in this area. When the Council wrote to Miss B about providing a family support officer, it said that the officer’s main focus was to get H back into college and to support her with some housing issues. I do not consider it was fault for the Council to use a family support officer who was not trained in special educational needs.

Complaints procedure

59. Miss B complained to the Council in July 2017 about the actions of a social worker and the Council not providing enough support for her family. The Council met with Miss B that month to try to resolve her concerns.
60. Miss B made another complaint in October 2017 about the inaccuracies in the child in need plan. She also repeated the concerns she had raised in July and complained about the actions of several other social workers.
61. Since then, Miss B has continued to complain about the same matters and senior officers have had several meetings with her to try and resolve her concerns. There is nothing in the meeting records or written responses to show that the Council explained to Miss B how it was dealing with her complaint or how to escalate it. This was fault.
62. Miss B asked to escalate her complaint in August 2018 and the Council then agreed to deal with her complaint in accordance with stage two of the statutory complaints procedure.
63. The Council’s records show that after meeting with Miss B several times, it decided that it could not proceed with the stage two investigation because Miss B refused to sign to show that she agreed with the definition of the complaint.
64. Miss B then contacted our office. We told the Council that it was not necessary to obtain Miss B’s signed agreement. The Council then agreed to proceed with its stage two investigation. We decided in March 2019 that we would not investigate at that time because the statutory complaints process was the best way to fully investigate Miss B’s complaints.
65. The Council completed its stage two response in June 2019. It partially upheld Miss B’s complaint about inaccuracies in its records but did not uphold most of the matters she complained about. Miss B remained dissatisfied and asked the Ombudsman to investigate.
66. There were some delays in completing stage two of the process, but my main concern is how long it took to get to that stage. While I do not doubt that the meetings the Council had with Miss B were a genuine attempt to resolve her concerns, the process was significantly prolonged because it did not tell Miss B how to escalate her complaints. Miss B made stage one complaints in July and October 2017 but was not told how to escalate her complaints until August 2018. This was fault and would have caused Miss B significant frustration and put her to avoidable time and trouble.

Agreed action

67. Within four weeks, the Council will:
• Apologise to Miss B and her sons for the failings identified in this case;
• Make a payment of £300 to Miss B for her distress and the time and trouble she has been put to pursuing her complaints;
• Make a payment of £1040 to Miss B to reimburse her for the cost of the Independent SEND Advocate;
• Make a payment of £279 to Miss B to reimburse her for the cost of the tutoring sessions; and
• Make a payment of £3540 for the failure to provide H with a full-time education between November 2017 and June 2019. This money should be used to benefit H’s education.
68. The Council has offered to provide SEND support to Miss B with her ongoing concerns about her son’s special educational needs. It has also reviewed its SENDIASS service and is taking action to increase its capacity in accordance with its Written Statement of Action. The Written Statement of Action was required following the joint inspection by Ofsted and the Care Quality Commission.
69. The Council has made changes to the way it deals with complaints and says it will be providing training to its Children’s Services Managers, to include learning from this complaint. Within eight weeks, the Council will also remind its social care staff that complaint responses should include the process for escalating complaints.

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Final decision

70. I have completed my investigation and uphold Miss B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

71. Miss B has made several complaints about the actions of individual social workers. I do not consider investigation of these matters is likely to find evidence of significant fault, or of fault which has caused significant injustice to Miss B. I have therefore decided not to investigate these aspects of Miss B’s complaint.
72. Miss B has complained about matters relating to H’s education going back several years. As explained above in paragraph four, we will usually only investigate matters which a complainant has become aware of in the last 12 months. For this reason, I have decided that we should not investigate events before September 2017.

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Investigator's decision on behalf of the Ombudsman