The Ombudsman's final decision:
Summary: Mr X complained about the Council's response to his children’s statutory complaint. The Council was at fault in how it responded to Mr X’s concerns about the actions of its education department and health services and for a delay in arranging an educational placement for Mr X’s son, W. This caused Mr X frustration and meant W missed out on educational provision. The Council will apologise to Mr X and W and pay W £1500 to remedy that injustice. It will also carry out staff training.
- Mr X complained about the Council's response to his children’s statutory complaint. He felt the Council should have identified it failed to provide timely and appropriate support for his son, W, after his needs increased in 2018. Mr X said this caused him stress and frustration and left W without the services he needed to improve his wellbeing.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
- The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
- 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)
- 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. Mr X complained about issues dating back to late 2018. However, he received the Council's complaint response in July 2021 so have I have exercised discretion (chosen) to investigate the complaint.
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
- I have considered:
- all the information Mr X provided and discussed the complaint with him;
- the Council’s comments about the complaint and the supporting documents it provided; and
- the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
What I found
Relevant law and guidance
Child in need
- Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
- A child is in need when they are “unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority”.
- Section 17 of the Children Act 1989 says where a council thinks child is in need it will carry out an assessment. The guidance ‘Working Together to Safeguard Children’ states assessments should include the views of the child and their family as well as information from relevant professionals involved with the child and their family.
- If the assessment identifies the child is in need, the council will produce a ‘child in need plan’ which sets out the services the council will offer the family to meet the child’s assessed needs. Caselaw has set out that councils have wide choice to decide what services a child needs. Councils are not responsible for the quantity or quality of provision provided by health services but should monitor whether the provision is being provided and remains suitable to meet the child’s needs.
Education, Health and Care Plans
- The responsibilities of councils towards children and young people with special educational needs (SEN) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, the SEND Code of Practice 2015 (The Code).
- Under the Children and Families Act 2014, councils have a duty to identify and assess the special educational needs of children in their area. To do this, councils carry out Education, Health and Care (ECH) assessments.
- If an assessment finds the child has a need for special educational provision, the council must prepare a EHC plan. If a council is unable to identify a suitable placement for a child, it can issue the final plan without naming one, or name a type of placement. The final plan gives a right to appeal to the SEND Tribunal.
- The Code explains that a council can make amendments to an EHC plan if minor changes are necessary. Once the council issues the amended plan, it again gives appeal rights.
- The SEND Tribunal is a tribunal that considers special educational needs and disability discrimination. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’)). Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, health and social care provision, or they disagree with school or type of school named.
Statutory children’s complaint procedure
- The statutory children’s complaint process was set up to give children and those representing them an opportunity for a thorough independent investigation of their concerns. The Children Act 1989 Representations Procedure (England) Regulations 2006 specify what can be considered using the statutory complaints process.
- The statutory process has three stages:
- Stage 1 - local resolution by the council.
- Stage 2 – an investigation by an investigating officer (IO) who will prepare a detailed report and findings. The investigation is overseen by an independent person (IP) to ensure its impartiality. The council then issues an adjudication letter which sets out its response to the findings.
- Stage 3 – an independent panel to consider their outstanding issues.
- In early 2018, W developed brain damage which resulted in difficulties including problems with managing his emotions, communicating and tiredness. W attended a treatment centre and in October 2018, was discharged and returned to live with Mr X. Following his discharge, the Council treated W as a child in need.
Children’s statutory complaints procedure
- In May 2020, Mr X complained to the Council. He said it failed in its duties to support W as a child in need. In particular, he said there had been a lack of suitable provision including neurological rehabilitation, Speech and Language Therapy (SALT), Occupational Therapy (OT) and education. He also said the Council had failed to properly coordinate the provision, leading to delays.
- Trafford Local Care Organisation (TLCO) delivered W’s rehabilitation, OT and SALT provision. The local NHS clinical commissioning group (CCG) was responsible for the actions of TLCO. Following Mr X’s complaint, the Council contacted TLCO and decided it would respond to Mr X’s complaint because most of the issues he complained about related to actions of social care. TLCO agreed it would contribute to the response.
- In June, the Council became aware Mr X was struggling to confirm his statement of complaint, so it arranged an advocate and decided to progress the complaint to stage two without issuing a stage one response. In December 2020, Mr X sent the Council his proposed statement of complaint, which the Investigating Officer (IO) and Independent Person (IP) agreed.
- The Council sent its stage two response in February 2021. The IO stated that because the complaint was being considered using the children’s statutory complaints procedure it was “therefore limited to the actions of Children’s Social Care”. It said that while the investigation could look at how the Social Care department coordinated services from other agencies and liaised with those agencies, “specific complaints about the provision of education or health (NHS) services would need to be direct to the relevant agency”’. The IO did not uphold most of Mr X’s complaint, including the issues he raised around the amount and timeliness of the provision W received.
- The Council sent its adjudication letter in mid-April 2021. It agreed with the findings of the IO. Mr X remained unhappy and asked for a stage 3 response. In summary he was unhappy the stage two investigation did not consider the actions of health services or the Council's education department.
- The Council held the stage three panel in mid-June 2021. The panel agreed the Council was responsible for coordinating provision but was not responsible for the quality of provision from other agencies such as the OT or education. It noted Mr X felt he had had to arrange services for W on his own and while it did not agree that was case, it recommend staff undergo training to re-emphasise the challenges parents feel in understanding the role of the Council in the children in need process.
- The Council's stage three adjudication agreed with the findings of the panel and it has carried out the staff training.
Response to enquiries
- I asked the Council how it decided not to work with the relevant NHS bodies to run concurrent investigations and give Mr X the outcome of their complaint response at the same time. The Council said it would have involved TLCO if it issued a stage one complaint response. The Council said it was not responsible for what the IO and IP agreed as a statement of complaint. It also said Mr X never said he was unhappy there had not been a concurrent health investigation.
- I also asked the Council how it decided not to investigate Mr X’s concerns about the actions of its education department. The Council sent me a record of an email to Mr X when agreeing the scope of complaint which said that Mr X’s concerns about the lack of education at home and in a placement were “primarily a ... education question and I may need to refer to these bodies to investigate these elements”. It also said its education department had responded to a complaint from Mr X in 2019. I have seen the complaint response which was a chronology of actions the Council had taken to arrange educational provision from June 2018 to October 2019.
Findings- children’s statutory complaints procedure
- If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider that investigation was flawed.
- The Council properly considered how to issue a joined up response with TLCO at stage one. However, once it decided to progress the complaint to stage two without a stage one response, the Council took no further action to work with TLCO to answer Mr X’s complaint. This was fault. The Guidance states councils and health bodies should work together to run concurrent investigations and issue responses at the same time. This does not only apply to stage one of the process.
- Mr X was clear in his request for the stage two and three that he was unhappy with the actions of health bodies. It was not for him to know that the stuatory procedure makes provisions for concurrent investigations and ask for that specifically. The Council's fault caused him avoidable frustration because he did not received the joined up response he was entitled to.
- The Guidance also states councils should consider whether to include complaints about other services it provides in its response to a statutory complaint. There is no evidence the Council did this with regards to Mr X’s concerns about the actions of its education department. I am not persuaded by the Council's argument that it had already responded to Mr X’s complaint. That complaint response finished in October 2019 but the Council did not agree Mr X’s statement of complaint until December 2020. There was a significant period of time in which the Council provided educational services to W and for which Mr X had no reply. In addition, that response was a chronology and not an answer to Mr X’s concerns. The Council's failure to properly consider whether to include the educational issues in the children’s complaint response was fault and also caused Mr X avoidable frustration.
- Due the faults identified in paragraph 36 and 37 I have investigated how the Council offered SALT, OT, rehabilitation provision and education to W. The following section sets out the key events, it is not intended to be a detailed chronology.
- Prior to W’s discharge from the rehabilitation centre in October 2018, the Council began a child in need assessment. It spoke to W and Mr X, sought information from the centre, and reviewed previous social care records.
- In November 2018 the Council completed the assessment and issued W’s child in need plan in early December 2018. The plan set out the support the Council would arrange for W, including weekly SALT sessions. It noted the Council had begun the process of producing an EHC plan and in the meantime, had arranged for W to attend a service called ‘Activity Agreement’. Activity Agreement would give W the opportunity to explore educational and vocational settings and see what provision would suit him. W continued attending Activity Agreement throughout the period I have investigated.
- The weekly SALT support began in mid-October 2018 at a medical practice.
- In January 2019, the Council sent W’s final EHC plan to Mr X. The plan said that once W was in an educational or training placement, the OT service would work with the placement to allow W to practice his skills in a variety of contexts. It said he would receive weekly SALT sessions until he had an educational placement. After that, SALT would work with educational staff to allow them to support W and improve his communication. The plan named a type of educational placement: specialist post-16 institutions.
- Where someone is unhappy with the provision or placement set out in an EHC plan, we would normally expect them to use the right of appeal to the SEND Tribunal and would not investigate the period after the Council issued the EHC plan. Mr X did not appeal but I have exercised discretion to investigate the period after January 2019 on the basis it was not reasonable to expect him to appeal. This is because at that point, neither Mr X, W, or the Council knew the full extent of W’s needs and therefore, what provision he needed.
- At the end of January 2019, the Council contacted a rehabilitation service that specialised in brain injuries. The service offered W an assessment.
- In March 2019, the Council held a child in need meeting. It noted the following:
- W had continuing difficulties with his speech. After W had struggled to attend the session at the medical practice, SALT had provided support to staff at Activity Agreement so they could use strategies to help W improve his communication.
- From the end of the month, SALT would offer ongoing monthly sessions at home, where W was more able to engage with the service.
- The Council had received the outcome of assessments of W’s mental functions and was exploring formal education and skill-based training, including two colleges.
- Mr X would contact the rehabilitation service after W had a significant surgery. Records show that the surgery was delayed a number of times.
- Mr X said he wanted W to attend a specialist school (School A) based at the local hospital. The clinical psychologist involved with W agreed to explore whether School A would be suitable for W; and
- there was no current role for OT because W was able to make himself some food and drink and visit the local shops. It would become involved again when the Council arranged an educational or training placement.
- The Ombudsman cannot question a council's decision if it is made without fault. Caselaw has shown councils have wide discretion, or choice, to decide what services to offer a child in need based on its assessment. The Council carried out the assessment in line with the guidance and considered the relevant information, including the views of W and Mr X as well as the rehabilitation centre W attended. There was no fault in how the Council carried out its assessment and decided what support to offer W so I cannot question its decision.
- The Council decided W needed an EHC plan and services provided by TLCO, including SALT and OT support. As set out in the IO’s report, the Council was not responsible for deciding how those sessions were delivered, including their frequency.
Speech and Language Therapy
- TLCO arranged weekly SALT sessions promptly, beginning in October 2018. W’s January 2019 EHC plan reflected that provision. In March 2019, the OT service instead began visiting him once a month at home due to his difficulties engaging with the weekly appointments. The Council was not responsible for that decision but it properly considered whether the reduced provision continued to meet W’s needs at the child in need meeting.
- However, the Council has a duty to provide the provision set out in a child’s EHC plan. When that provision changed, it should have amended W’s plan and issued a new version. This was fault and meant Mr X did not receive the right to appeal the change of provision. However, on balance, this did not cause Mr X significant personal injustice because he did not appeal the provision set out in W’s other EHC plans so I do not think he would have done so at this stage had the Council acted without fault.
- W’s January 2019 EHC plan stated the OT service would support him when he was in an educational or training placement. While Mr X hoped for more OT involvement, this was a decision made by TLCO and so not the responsibility of the Council. The April 2019 child in meeting shows the Council properly sought the views of the OT service again to confirm if there was anything further it could do to meet W’s needs. The Council was not at fault.
- The options for neurological rehabilitation are unfortunately limited for people under eighteen. However, the Council contacted a suitable service in January 2019. While this was several months after W was discharged from the rehabilitation centre, I do not consider the delay amounts to fault. The service responded to offer W an assessment if he wanted one. The child in need meetings from March and June 2019 show the Council confirmed the service was open to W if he wanted to have an assessment. The Council acted appropriately by identifying the service and making W aware of it; it was not at fault.
- W’s brain injury caused significant and complex needs. At the time of the January 2019 EHC plan, it was unclear what placement would be suitable to meet W’s special educational needs. As a result, the Council named a type of placement: specialist post-16 institutions and W continued attending sessions with Activity Agreement. This offered W an opportunity to explore placement options.
- However, in April 2019, Mr X said he wanted W to attend School A. The Council acted appropriately by asking W’s clinical psychologist to seek more information about whether the school could meet W’s needs. However, the Council took no further action to explore School A until September 2019. This delay was fault. Ultimately, School A agreed to accept in late November 2019. On balance, I find that had the Council explored School A promptly, it would have arranged the placement several months earlier than November 2019. This meant W missed out on provision he should have received. The delay also caused Mr X avoidable frustration.
- Within one month of the date of my final decision, the Council will:
- apologise to Mr X for the frustration caused by the delay in arranging W’s placement at School A and its failings in responding to his complaint;
- apologise to W for the loss of provision he experienced as a result of the Council's failure to arrange the placement at School A; and
- pay W £1500 in recognition of the loss of provision. This is based on £300 per month for five months. This is in line with the Ombudsman's Guidance on Remedies and takes into account W’s special educational needs and that the Council offered him the Activity Agreement throughout the period of delay.
- the actions of the Council and a health body, they should consider whether to work with the health body to run a concurrent investigation and issue a joined-up response. This applies at all stages of the complaints procedure.
- the actions of children’s social care and another Council department, they should consider whether to include the complaint about the other department in the investigation.
- I have complete my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.
Investigator's decision on behalf of the Ombudsman