Summary: Mrs X complained that the Council failed to provide her son, D, with a suitable education for up to a year. We found the Council at fault in a number of areas and the Council agreed to recommendations to remedy the injustice the faults had caused. The Council failed to provide evidence of compliance with all our recommendations. This was concerning from a public interest point of view because our investigation raised concerns about the Council’s special educational needs department. We have made further recommendations, which the Council has agreed to.

The complaint

1. In our final decision dated 5 March 2021, we found the Council at fault in a number of ways, including a failure to assess a young person, D’s needs, a failure to arrange a review of D’s exclusion from school, for delay in issuing an Education, Health and Care plan (EHC plan) and incorrectly informing the complainant, Mrs X that its offer of compensation was in line with Ombudsman guidelines. We found that the Council’s approach caused Mrs X and D a grave injustice. D missed out on a suitable education for up to nine months and spent his time in effective isolation. Mrs X got into debt trying to pay for childcare for him while he worked and the family suffered significant distress.
2. The Council agreed to action a number of recommendations (which I shall refer to in more detail below) to remedy the injustice. It took some time to comply with most of the recommendations but has now provided evidence of compliance, albeit late. We did not consider it fully complied with our final recommendation, as set out below:

• Within three months of my final decision, the Council should complete a full review of this case and document lessons learnt. The Council should provide training to officers around the importance of progressing early assessments and EHC plans where needs may have been identified.

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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. 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

5. I spoke with a representative of the Council and reviewed the Council’s communication in response to our recommendations.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

7. I set out the recommendations made in our final decision of 5 March 2021 and the Council’s response to these below. The Council was required to provide evidence of completion of all of the below to the Ombudsman.
8. Agreed action

• Within one month of my final decision, the Council should apologise in writing to Mrs X for the fault identified in this decision.

9. The Council wrote an apology letter to Mrs X on 19 April 2021.
10. The apology was two weeks late. The Council says it actually issued the apology in a timely way to both parties. However, when it was informed the apologies had not arrived, it forwarded them by email. It says it will ensure that any future communication of that nature will be issued by registered post and a copy provided to the Ombudsman at the same time.

• Pay Mrs X the sum of £11,200, as already offered, for childcare costs between September 2018 to May 2019. (The Council says this sum represents payment for the 160 days it provided home schooling to D, when it accepts Mrs X incurred £70 childcare costs per day. If this sum does not also include the school days when the Council did not provide home schooling, between 12 July 2018 and 26 September 2018, the Council should revise its offer to include £70 per day for those days also.) And;
• the sum of £1200 to acknowledge the significant distress Mrs X suffered during the relevant period. This is a symbolic payment, aimed at acknowledging Mrs X’s distress and concern for D while he was at home, the lack of support or effective response to her requests for support and to acknowledge her ongoing concern that D missed out on numerous opportunities and possibly an opportunity to continue in mainstream education, because of Council fault.
• the sum of £300 to acknowledge the time and trouble she took to bring this complaint. This payment is also to acknowledge the Council’s initial poor complaint response and the frustration this must have caused Mrs X.

11. Payment was ultimately not fully provided until almost two months after the due date.

• Apologise in writing to D for the fault identified in this decision.

12. We received a copy of the Council’s apology to D on 23 July 2021, over three months after the due date.
13. In response to this criticism, the Council makes the same point I related in my paragraph 10 above. It says it sent the apology by post so that D could open a physical letter. However, when it was informed the D’s apology had not arrived, it forwarded it by email. It says it will ensure that any future communication of that nature will be issued by registered post and a copy provided to the Ombudsman at the same time.

• Pay D the sum of £5000 to acknowledge the impact of the loss of D’s education, and
• the sum of £1500 to acknowledge the avoidable significant stress that D underwent through the period. The payment is also to recognize his missed opportunity to challenge School F’s allegations against him.
• the sum of £1000 to acknowledge the injustice caused by the Council’s failure to complete an EHC plan within the statutory time limits and the uncertainty he may have about whether he might have been able to attend a mainstream school or another institution at an earlier stage if he had been provided with the support he would have received by going through the process at an earlier stage.

14. This recommendation was complied with at the same time as payment was provided above.

• Complete, if this has not been undertaken in the last year, a full social care needs assessment on D and his family. If any needs are identified, all efforts should be made to meet these as soon as possible.

15. It was clear that as far back as July 2018, D required a social needs care assessment. Mrs X had complained about the failure to complete this assessment in July 2019. Our final decision said that one should be completed by 2 April 2021.
16. We chased compliance with this recommendation several times; on 7 April 2021, 17 May 2021, 18 June 2021, 7 July 2021, 6 August 2021, 17 August 2021.
17. The Council did not set up a meeting with the complainant to complete the assessment until 5 June 2021. It says it was completed by 9 August 2021. It initially said this was in line with its commitment to complete an assessment within 45 days. It later accepted that this was not appropriate given the length of time an assessment had been sought for.
18. It did not begin the assessment process until two months after the date for compliance and it did not, despite being repeatedly requested, provide evidence that it had completed the assessment until 28 October 2021.

• Offer D and his family counselling and or therapy to address any ongoing issues they may have as a result of the period investigated in this complaint.

19. Evidence of completion was not provided until 4 October 2021, six months after the due date.

• Within three months of my final decision, the Council should complete a full review of this case and document lessons learnt. The Council should provide training to officers around the importance of progressing early assessments and EHC plans where needs may have been identified.

20. The Council completed a review of the case. It revealed a number of issues with its Special Educational Need service.
21. We repeatedly asked the Council to provide evidence of the relevant training provided to officers. It has yet to provide sufficient or any evidence of the appropriate training.
22. The Council says that it did institute training to begin to address the issues identified by the Ombudsman. However, it accepts that the evidence it submitted and the training provided did not meet the recommendations. It says that appropriate training will be designed, delivered and evidenced to the Ombudsman within three months of our final decision.

Analysis

23. The Council accepted it was at fault in this case. The fault caused significant injustice for Mrs X and for D. It has also now accepted it was at fault for failing to comply with recommendations it agreed with the Ombudsman.
24. It is disappointing that the Council failed to comply with recommendations in time. It must have been extremely frustrating for Mrs X and for D. I have made a recommendation to acknowledge that further distress.
25. It is also concerning that it failed to demonstrate that it has complied with the last recommendation regarding providing appropriate training to officers. This is especially so because the review that the Council completed on the case revealed the Council accepted a number of issues with its service, including that there are significant concerns around the adequacy of its training.
26. Effective training and management is vital to address any issues. In response to our draft decision, the Council says it understands the real need to address the faults that have been identified.
27. However, the Council’s failure to demonstrate it proactively addressed the accepted service failings was of concern and we made recommendations that it demonstrates it has complied with our recommendation regarding training to begin the process of correcting issues in its SEN department. It has agreed to do so.

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Agreed action

28. Within one month of our final decision, the Council should:

• Apologise to Mrs X and separately to D for its failure to comply with the recommendations in our final decision dated 5 March 2021.

29. Within three months of our final decision the Council should demonstrate that it has:

• Provided training to relevant staff on the importance of progressing early assessments and EHC plans where needs may have been identified.

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Final decision

30. I have found fault with the Council for failing to evidence compliance with Ombudsman recommendations. I have now completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman