Summary: Z complains of fault by the Council in meeting his Special Educational Needs, causing him to lose provision. Some matters are outside the Ombudsman’s jurisdiction, and there is no evidence of fault in making SEN provision via a teaching assistant. However, the Council did not deal with all of Z’s complaint, and its corporate complaints policy lacks timescales and clear progression. The Council will apologise to Z for not responding to the complaint about the teaching assistant and review its corporate complaints policy to provide clear timescales and progression.

The complaint

1. The complainant, whom I shall call Z, complains via an advocate that:
1. The Council failed to make educational provision for him;
2. He was bullied at school;
3. He did not receive the SEN provision stated in his Education Health and Care (EHC) Plan because a teaching assistant (TA) failed to support him properly at school, texting when they should have been helping him; and
4. The Council failed to deal with his advocate’s complaint properly, not responding to his complaint about the teaching assistant and failing to accept a request to escalate the complaint to the second stage of its corporate complaints procedure.

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What I have investigated

2. I have investigated complaints c) and d). I give my reasons for not investigating complaints a) and b) at the end of this statement.

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The Ombudsman’s role and powers

3. 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)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. 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 decision with Ofsted.

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How I considered this complaint

9. I read the complaint sent to us and spoke to the advocate on the telephone. I made written enquiries of the Council and considered the documents it supplied.

I considered the comments of both parties in response to a draft of this decision.

10. This complaint is set in the context of a very strained relationship between Z’s parents on one hand and the Council and Z’s school on the other. However, I am satisfied this is Z’s complaint, not his parents’, that he is entitled to make it, and that he is properly represented by an advocate with an established record of representing young people.

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What I found

What happened, and was there fault?

Z’s teaching assistant

11. In response to my enquiries, the Council told me it became aware of the allegation in October 2018. It said it sent an advisory teacher, who found the TA had been over-supporting Z. It was unable to provide written evidence of the advisory teacher’s view or the visit.
12. The Council provided a copy of a letter from the school to Z’s parents. In this letter, the school said Z’s mother had harassed TAs at the school to the extent that many were unwilling to work with Z. The school also said it was concerned that Z’s mother had acted in Z’s presence in a way that was likely to diminish his confidence in the school.
13. For balance, Z’s parents’ view is that staff at the school bullied them and Z.
14. I have communicated with Z’s mother by phone and email. She presents as unusually agitated. When I asked her during a phone conversation if Z could hear what she was saying, she replied that he was aware and in full agreement with her views.
15. I have tried to reach a view on the balance of probabilities. However, the absence of any evidence of the advisory teacher’s view does not allow me to support the Council’s contention that the issue was over-support needing to be scaled back. And the concerns reported by the school about Z’s mother, supported by my own observations of her inability to remain calm and to exclude Z from her anxieties, do not allow me to say Z reached his view independently of parental influence. I have therefore not been able to reach a view whether the TA failed to support Z or if she had instead been previously over-supporting him.
16. But the Council should have made a record of the advisory teacher’s views. Failing to do so was fault. The Council said it is not responsible for the conduct of staff at a school. However, the advisory teacher was acting on the Council’s behalf, not the school’s, and the failure to record the visit or the views reached by the advisory teacher was fault.

Complaint handling

17. We would also expect a council’s complaints policy to give clear timescales and progression through the stages of the policy, with clear criteria for decisions on progression.
18. The Council’s corporate complaints policy specifies an initial written response at the first stage, “within 10 to 20 working days of receiving it”. It then allows the Council to choose between a “senior management review” or a Stage 2 investigation, or to do both. There is no timescale for the Council to decide which route to take. The reason for the choice is also ill-defined, the senior management review being chosen if the Council feels the “complaint may still be meaningfully resolved at Stage 1”.
19. The senior management review is carried out “usually within 20 working days from the date of the letter” that advises the complainant of this.
20. A dissatisfied complainant may ask for a Stage 2 investigation within 20 working days of receiving the Stage 1 or senior management review response. The policy states the Council will tell the complainant what will happen next within three working days.
21. Progression to the Stage 2 investigation, which has a maximum timescale of 65 working days, is at the Council’s discretion. It may decline this if it is impossible to deliver the complainant’s desired outcomes or the complaint has already been upheld.
22. I find the Council’s corporate complaints policy to be affected by fault in two ways:

• The lack of clear timescales at the first stage or for the senior management review is fault; and
• The lack of an objective criterion for the choice between the senior management review and the Stage 2 investigation is fault.

23. In Z’s case, the Council failed to respond to the complaint about the TA in its response to the advocate’s written complaint. When I enquired about this, the Council first told me it had been dealt with in earlier correspondence. When I asked for earlier correspondence, it could not provide any. It then told me the complaint had not been formal. In the absence of any evidence to support its assertions, I therefore find the Council failed to deal with the complaint about the TA properly. The Council maintains Z’s representative was happy with the way it dealt with the complaint despite it being part of the complaint made by the representative to us.

Injustice caused by fault

24. It is not possible to say if the TA acted as Z says, or if there had been too much TA support. That is the result of the failure by the Council to record the advisory teacher’s views and the failure to deal with the complaint about the TA. Given the passage of time, a robust answer to the complaint about the TA is unlikely. But Z has not had his complaint properly investigated. That is injustice to Z in the form of lost opportunity, which is particularly important in the context of the dispute between his parents and the Council.
25. Separately to this, the Council’s corporate complaints policy is not worded to provide clear timescale and progression. This creates clear potential for confusion and delay.

Agreed action

26. To remedy the injustice caused by fault, the Council will, within one month of the final decision:

• Apologise to Z for failing to record the advisory teacher’s view and for failing to deal with the complaint about the TA.

27. To ensure complaints by members of the public are properly dealt with, the Council will, within three months of the final decision:

• Review its corporate complaints policy to ensure it has clear timescales at all stages and gives an objective criterion for any point where the Council may choose from two or more routes of progression.

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Final decision

28. I have upheld the part of the complaint about record keeping and complaint handling, but not the remainder. I have closed the case as the Council has agreed to take the recommended action. Two points of complaint are outside the Ombudsman’s jurisdiction.

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Parts of the complaint that I did not investigate

29. Complaint a) concerns a period when Z was not in education after March 2019. However, his parents appealed to the SEND Tribunal at this time against the content of Z’s EHC Plan. The courts have established that the Ombudsman has no authority to consider the educational provision made once someone exercises a right of appeal to the SEND Tribunal. Although Z does not accept this, I am therefore unable to consider his period out of education after March 2019.
30. Complaint b) concerns the functions of a school. There is a statutory bar against the Ombudsman investigating such matters, so I have not considered the school’s actions.

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Investigator's decision on behalf of the Ombudsman