Summary: Mr X and Miss Y complain about the way the Council handled providing support for their disabled son. They say this has caused distress, anxiety and inconvenience, and has added strain to the family. The Ombudsman upholds the parts of Mr X and Miss Y’s complaint about the statutory complaint investigation and delays in the complaint handling process. The Council will apologise to them and make a payment to reflect the injustice caused by the faults.

The complaint

1. The complainants, who I refer to here as Mr X and Miss Y, complain that:
1. despite the complaint investigation upholding parts of their complaint, the Council did not consider the impact on the family or provide any resolutions;
2. the Council delayed starting and completing a second investigation, as recommended by the stage three review panel;
3. the stage two investigation and stage three review panel did not uphold part of their complaint, and they disagree with this;
4. the Council has not clarified whether it considers that their child needs intervenor support;
5. the Council has not reviewed the Education, Health and Care plan despite their complaint, that the Council failed to comply with regulations, being upheld;
6. the Council has not clarified whether the child’s social care provision was intended to be provided under the Chronically Sick and Disabled Persons Act 1970;
7. the Council will not acknowledge the consistent and cumulative failures to respond to their concerns; and,
8. the Council has not answered questions that they repeatedly asked.
2. Mr X and Miss Y say this caused distress and inconvenience, increased anxiety, and damaged their trust in professionals. They say their child lost 22 months of intervenor support, and the opportunity for the progress their child could have made in that time is also lost. Mr X and Miss Y say there has been a strain on the family because of a lack of social care. They say lodging continuous appeals has added to the strain.

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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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

10. I considered the information and documents provided by Mr X, Miss Y and the Council. I spoke to Mr X about the complaint. Mr X, Miss Y and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments I received before I reached a final decision.
11. I have considered the relevant statutory guidance and policies, set out below.

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What I found

What should have happened

Children’s social care complaints

12. The government published statutory guidance, ‘Getting the Best from Complaints’, which sets out a three-stage procedure that councils follow when considering certain complaints about children’s social care services.
13. The guidance sets out timescales within which certain actions should be completed.
14. The guidance says that once a complaint is made, the council should make an initial attempt to resolve matters within ten working days, unless an extension is agreed. The guidance says the maximum time a stage one should take is 20 working days. After this deadline, a complainant can ask for the complaint to be dealt with at stage two.
15. If the complaint is not resolved, or if parties agree, then the complaint should be investigated at stage two of the complaints process. Stage two begins either when the complainant asks for it, or where parties agree that stage one is not appropriate.
16. At stage two, the council appoints an independent Investigating Officer to investigate the complaint, and an Independent Person who is responsible for overseeing the investigation. The council will appoint a senior manager to adjudicate on the findings.
17. The guidance says that the council has 25 working days to produce the Investigating Officer’s report and its own adjudication on the Investigating Officer’s findings.
18. The guidance says this can be extended to 65 working days because in certain circumstances 25 working days may not be sufficient or practical. It says this includes complaints that involve several agencies. The guidance says the important thing is to maintain dialogue with the complainant.
19. The Investigating Officer’s report should include details of their findings and recommendations on how to remedy any injustice to the complainant.
20. The purpose of the council’s adjudication on the Investigating Officer’s report is to give its response, its decision on each point of the complaint, and to identify any action to be taken (with timescales).
21. The complainant can then ask the council to convene an independent review panel. This forms the third stage of the complaints procedure. The review panel will consider the adequacy of the independent stage two investigation and will decide whether the complainant’s desired outcomes have been addressed.
22. The guidance says a council has 30 working days to arrange and hold the stage three review panel. The panel has five working days to issue its findings. The council then has 15 working days to respond to the panel’s findings.
23. The review panel should identify any injustice to the complainant where complaints have been upheld and recommend appropriate remedies. The panel should also recommend service improvements for the council, if appropriate.
24. If a council has investigated something under this statutory procedure, the Ombudsman does not normally re-investigate the original complaints unless he considers that the investigation was flawed. Instead, he will look at whether a council properly considered the findings and recommendations of the independent investigation and review panel.

Council’s corporate complaints procedure

25. The Council has a corporate complaints procedure that deals with different kinds of complaints than the statutory complaints procedure outlined above.
26. This corporate complaints procedure says that a senior manager will carry out a stage two review of the complaint. It says they will try to respond to the complaint within 20 working days. It says if there is going to be a delay, the Council will agree a new timescale.

What happened

27. Mr X and Miss Y have a son, B, who is deafblind. Because of this, B has an Education, Health and Care (EHC) plan. In 2016, the family moved to Cornwall from a different area.
28. In October 2017, Mr X sent the Council an email with his concerns about the transfer of B’s EHC plan from the other area and other concerns. The Council logged this as a complaint and sent Mr X an acknowledgement of the complaint the next day.
29. In November, the Council called Mr X asking what the family wanted from the complaint.
30. In March 2018, B’s EHC plan was finalised.
31. In April, the Council wrote to Mr X. It had reviewed its complaints team’s documents and could not see an outstanding complaint.
32. Mr X complained to the Ombudsman. The Council told the Ombudsman it would deal with Mr X’s complaint at stage two of the statutory complaints procedure.
33. The Council wrote to Mr X and Miss Y apologising that their complaint had not been dealt with at stage one of the complaints procedure. It explained that the team manager had left the Council, so their complaint had not been completed.
34. In May, the Council wrote to Mr X and Miss Y introducing the Investigating Officer and Independent Person commissioned to investigate the complaint at stage two.
35. In June, the Investigating Officer wrote to Mr X and Miss Y. She acknowledged the information they had sent and said it would take time to examine it all.
36. In July, the Investigating Officer wrote to Mr X and Miss Y with an update on progress.
37. In August, the Council emailed Mr X with an update on progress.
38. At the end of August, the Investigating Officer completed her report. She upheld four parts of Mr X and Miss Y’s complaint, and did not upheld two parts.
39. The parts of the complaint that the Investigating Officer upheld were: failing to continue to provide specialist (‘intervenor’) support for B after the transfer from the other area; failing to comply with regulations when issuing the final EHC plan; failing to clarify the applicability of the Chronically Sick and Disabled Persons Act 1970; and, failure to respond adequately to parents’ concerns.
40. The Investigating Officer did not uphold the parts of their complaint about failing to do a new EHC needs assessment to timescale, and failure to follow 2014 deafblind guidance.
41. The Council sent its stage two adjudication letter in mid-October. It did not fully agree with the Investigating Officer. The Council upheld one complaint, partially upheld another, and did not uphold four complaints.
42. The Council concluded by apologising for the upheld parts of the complaint, and where there was a shortfall in its responses to Mr X and Miss Y’s questions.
43. In November, Mr X asked the Council to take his complaint to stage three of the complaints procedure.
44. The stage three review panel was held at the end of November. The panel found that one part of the stage two investigation did not make a clear distinction between a social care assessment and an EHC needs assessment. For that reason, the panel recommended that the Council commission a new stage two investigation to look at that part of the complaint.
45. The panel found no shortcomings with the Investigating Officer’s stage two investigation for the other five parts of the complaint. For this reason, the panel said the Council should accept the Investigating Officer’s findings and uphold the parts of the complaint it had not previously fully upheld. One part of the complaint remained not upheld.
46. In December, the Council sent its response to the stage three review panel’s findings. It agreed and upheld four parts of the complaint. One part remained not upheld.
47. The Council said it had initiated a new stage two investigation for the remaining part of the complaint, as the panel recommended.
48. In April 2019, the Council sent Mr X and Miss Y its findings on the second stage two investigation. It accepted it was at fault for not telling them it would adopt the previous council’s EHC plan, or to confirm the arrangements and timescales for reviewing the plan. It said an apology letter would be sent by the manager of the relevant team.
49. The Council explained the reasons for the fault, which lay with resource pressure and being short staffed. It said what action it was taking to address the reasons behind the fault. It apologised for any distress they experienced. It said this concluded the Council’s stage two investigation, and signposted them to the Ombudsman if they remained unhappy.
50. Two weeks later, the Council sent Mr X and Miss Y an apology letter. It apologised for the faults identified in the second stage two investigation.
51. Mr X and Miss Y then complained to the Ombudsman.

Analysis

(a) No consideration of impact, no resolutions offered

52. Mr X and Miss Y complain that despite the complaint investigation upholding parts of their complaint, the Council did not consider the impact on the family or provide any resolutions (part a of the complaint).
53. The stage two investigation and the stage three review panel both upheld four parts of Mr X and Miss Y’s complaint. I find no fault with the way the complaints were investigated.
54. The guidance says that the Investigating Officer should make recommendations on how to remedy injustice caused by faults (see paragraph 19). The guidance says that the stage three review panel should identify injustice where a complaint has been upheld, and recommend appropriate remedies (see paragraph 23).
55. I find that neither the stage two investigation nor the stage three panel considered injustice caused by the identified faults. This is not in line with the guidance and is therefore fault.
56. I find that this fault caused Mr X and Miss Y injustice because no remedies were considered or recommended, as they should have been, in line with the guidance.
57. Further to this, the Council did not identify any injustice caused to Mr X and Miss Y in its stage two adjudication or its response to the stage three panel. I find these were missed opportunities.
58. The Council’s response to the stage three review panel apologised that the “Service response has fallen short on this occasion”. This does not make clear what the apology is for, and does not recognise the individual points of fault upheld by the stage three panel.
59. I find that this apology is insufficient and unclear.
60. The fifth part of Mr X and Miss Y’s complaint was upheld at the second stage two investigation. In the Council’s apology letter to Mr X and Miss Y of April 2019, it apologised for not following due process regarding the EHC plan, for not telling them it had decided a reassessment was unnecessary, for not telling them it was adopting the existing EHC plan, and for not giving them timescales for the EHC plan review.
61. The Council also apologised for the frustration and uncertainty this caused. This is injustice, which the Council identified. It is my view that this should have been done at end of the statutory process at the end of 2018. However, I am satisfied that the Council’s apology is a suitable remedy for the injustice caused by these faults.
62. I must note here that the Council identified three service improvements as a result of the second stage two investigation, which is positive. For this reason, I have not considered additional service improvements to the remedies here.
63. The Investigating Officer found that the Council had given no consideration to whether service provision should be considered under the Chronically Sick and Disabled Persons Act.
64. Neither the Investigating Officer nor the stage three panel considered the injustice caused by this to Mr X or Miss Y. I have considered this, and I do not find that this fault caused them any injustice. I have addressed the lack of service provision. However, I do not find that having information in one section of the EHC plan rather than the other causes Mr X or Miss Y injustice.
65. Should Mr X or Miss Y continue to disagree with the EHC plan, they can challenge the content of the plan through the SEND tribunal. This is not something the Ombudsman can determine (see paragraphs seven and eight).
66. The final part of the complaint that the Investigating Officer upheld was the failure to adhere to timescales set out in the guidance.
67. In summary, Mr X complained in October 2017. No stage one was completed. In April 2018, the Council said it could not see an outstanding complaint. The stage two investigation began in April 2018, nearly six months after Mr X complained.
68. The Investigating Officer’s report and the Council’s stage two adjudication should have been completed within a maximum of 65 working days. It was actually completed after 131 working days (from the start date of April 2018).
69. I note that the Council contacted Mr X and Miss Y in July and August 2018 to keep them informed of progress with their complaint. This is good practice, but the fact remains that statutory timescales were exceeded.
70. The handling of stage three was completed within the statutory timescales.

(b) Delays in the second stage two investigation

71. Mr X and Miss Y complain that the Council delayed starting and completing a second investigation, as recommended by the stage three review panel (part b of the complaint).
72. The Council sent its response to stage three in mid-December 2018. This said a new stage two investigation was being organised. The Council sent its stage two response in April 2019, 81 working days later.
73. The Council dealt with the second stage two investigation under its corporate complaints procedure. This procedure says the Council will try to respond to the complaint within 20 working days. This did not happen, so I find the Council at fault.
74. The complaints procedure says if there is going to be a delay, the Council will agree a new timescale. I have seen no evidence that the Council informed Mr X or Miss Y that there would be a delay in sending them the second stage two response. This is fault.
75. I find these faults caused Mr X and Miss Y injustice because their complaint was not dealt with in line with the procedure, and because they were not kept informed of delays.

(c) Parts of the complaint that were not upheld

76. Mr X and Miss Y complain that the stage two investigation and stage three review panel did not uphold part of their complaint, and they disagree with this (part c of the complaint).
77. I see no evidence of an inadequate investigation at stage two, or an inadequate response at stage three. I find nothing to indicate the investigation was flawed (see paragraph 24).
78. For these reasons, I have not re-investigated this part of Mr X and Miss Y’s complaint about conflicting assessment decisions and failure to follow the 2014 deafblind guidance.
79. Mr X and Miss Y disagree with the outcome of the complaint investigation. This is not evidence of fault.

(d) No clarification whether B needs intervenor support

80. Mr X and Miss Y complain that the Council has not clarified whether it considers that B needs intervenor support (part d of the complaint).
81. This did not form part of Mr X and Miss Y’s complaint to the Council. It appears to be a new complaint that has arisen as a result of the complaints procedure.
82. The Council has not had an opportunity to respond to this part of their complaint through the statutory complaints procedure. For this reason, I cannot now find fault with the Council.
83. Mr X and Miss Y use the term ‘intervenor’. This has led to confusion between all parties because there seems to be no recognised intervenor qualification. Mr X told the Investigating Officer that an ‘intervenor’ is a specialist worker for deafblind people.
84. The Council has commissioned specialist input to ensure that B’s complex needs are appropriately recognised. The Council has commissioned a sensory loss report. This extra report has been arranged with specialist teachers who have already worked with B and know him and the family well. This is underway. It will inform the review EHC plan. The outcome of this process will clarify what kind of support B needs.
85. Once this has been completed, this should leave Mr X and Miss Y in no doubt as to whether the Council believes B needs a specialist worker for deafblind people. If Mr X and Miss Y continue to disagree with the content of the EHC plan, they can appeal the contents at the SEND tribunal.
86. I find that the job title of an appropriate person to work with B is immaterial. What is important is that appropriate support is provided in line with the EHC plan. The part of Mr X and Miss Y’s complaint about failing to provide this support was upheld and dealt with above, in part a of the complaint.

(e) No review of the Education, Health and Care (EHC) plan

87. Mr X and Miss Y complain that the Council has not reviewed the Education, Health and Care (EHC) plan despite their complaint, that the Council failed to comply with SEND regulations, being upheld (part e of the complaint).
88. The Investigating Officer found that the Council failed to comply with the SEND regulations in a few ways. However, the Investigating Officer did not find that the Council failed to comply with the part of the regulations about reviewing the EHC plan.
89. Further, I have seen no evidence that this was part of Mr X and Miss Y’s complaint that was considered at stage two and three. So, this has not gone through the statutory complaints procedure and the Council has therefore not had an opportunity to respond. For this reason, as above, I cannot now find the Council at fault.

(f) No clarification of the Council’s intention about B’s social care provision

90. Mr X and Miss Y complain that the Council has not clarified whether B’s social care provision was intended to be provided under the Chronically Sick and Disabled Persons Act 1970 (part f of the complaint).
91. This part of the complaint was upheld by the Investigating Officer and the stage three review panel. The Investigating Officer addresses this fully.
92. The Council says it cannot explain why the advice from the SEN team was listed in one section of the EHC plan at one stage, but listed in another section six months later.
93. I cannot say what the Council’s intentions were. However, it is clear that the EHC plan issued in March 2018 clearly shows in which section it believes the social care should be listed. One section relates to the Chronically Sick and Disabled Persons Act 1970, and the other relates to social care needed because of special educational needs.
94. I will not look at this issue any further. This is because this has already been investigated by the Investigating Officer and has been upheld. This means that fault has already been found.
95. This has already been covered in my response to part a of the complaint. As I have said in paragraph 64, I do not consider that this fault caused Mr X or Miss Y injustice.

(g) Council will not acknowledge failures to respond to concerns

96. Mr X and Miss Y complain that the Council will not acknowledge the consistent and cumulative failures to respond to their concerns (part g of the complaint).
97. This part of Mr X and Miss Y’s complaint was upheld by the stage two investigation and stage three review panel, but these did not identify injustice arising from the fault and made no recommendations. This has been fully addressed in my response to part a of the complaint. For this reason, I will not consider it further here.

(h) Unanswered questions

98. Mr X and Miss Y complain that the Council has not answered questions they repeatedly asked (part h of the complaint).
99. Mr X listed four questions that he says the Council has not answered. I will not re-investigate the complaint because there is no fault in the way it was investigated at stage two and three. However, I have sought to answer these questions in order to draw a line under the matter for Mr X and Miss Y.
100. Mr X says the outcome of a social care assessment said B needed intervenor support, but the next assessment did not say this. He asked what had changed.
101. The Council says the first social care assessment did not use the word ‘intervenor’, it says ‘support worker who can use British Sign Language and has an understanding of deafblindness’.
102. Mr X wants to know what the Council says B’s needs are, what legislation applies, and what it will do to meet those needs.
103. I find that the EHC plan says what B’s needs are, what legislation applies, and what the Council will do to meet those needs. That Mr X and Miss Y disagree is not evidence of fault. If they wish to challenge the content of the plan, they can do so at the SEND tribunal.
104. Mr X says the Council assessed B and said he would get an intervenor but then changed its mind. He says this is not addressed in the complaint response.
105. The Council’s lack of support in line with EHC plan, which was upheld by the Investigating Officer and the stage three panel, are dealt with in my consideration of part a of the complaint.
106. Mr X says B is not currently getting any support.
107. The Investigating Officer and the stage three panel upheld the part of the complaint about service provision. This is addressed in my consideration of part a of the complaint.

Agreed action

108. Four parts of Mr X and Miss Y’s complaint were upheld by the Investigating Officer and the stage three review panel, with no consideration of injustice and no proposed remedies to reflect the injustice (part a of this complaint).
109. I have considered each of the upheld parts of the complaint and considered an appropriate remedy. These are outlined below.
110. The Investigating Officer and stage three panel upheld the complaint about the Council failing to provide ‘intervenor’ support in line with B’s EHC plan. The Investigating Officer found that the Council had a duty to maintain the existing EHC plan (from the previous area) until it had conducted a review of B’s needs and informed the family of its intention to review the plan.
111. The Investigating Officer found that apart from 15 hours per week in multi-sensory support, all other services were maintained.
112. The family moved to Cornwall in September 2016. The Council reviewed the EHC plan in July 2017. This is the period the Investigating Officer found the Council at fault for not providing this service to B.
113. I must note that the Council made repeated efforts to resolve this, but Sense (the charity the Council hoped to commission the service from) was not able to recruit a suitable person for the full 15 hours per week.
114. I must also note that the Council found a suitable person to deliver this provision, but they were not able to provide the full 15 hours per week. As I understand it, Mr X and Miss Y declined this offer.
115. Taking all of this into account, the remedy for the injustice caused by this identified fault is for ten months for one element of provision that would have been 15 hours per week.
116. Having considered the Ombudsman’s published guidance on remedies and other similar cases, I have determined that £100 per month is a suitable remedy for the injustice caused by this fault. This is a total of £1000 (ten months at £100 per month).
117. The Council failed to consider Mr X and Miss Y’s complaint within the statutory timescales. Their complaint was not considered at stage one. There were delays throughout the process. It is my view that the Council should apologise for this, and make a payment to reflect the injustice caused by the delays.
118. In line with the Ombudsman’s published guidance on remedies, I consider £200 an appropriate financial remedy for this injustice.
119. The Council failed to respond to the second stage two complaint in line with its corporate complaints procedure, and failed to inform Mr X or Miss Y of the delays. I find the Council should apologise for this, and should make a payment of £100 (in line with the Ombudsman’s published guidance on remedies) to reflect the injustice.

Summary of agreed action

120. Within four weeks of this decision, the Council has agreed to:
• make a payment of £1300 (£1000 for the injustice identified in paragraph 110 to 112; £200 for the injustice identified in paragraph 117; £100 for the injustice identified in paragraph 119); and,
• apologise in writing for the injustice caused by the faults (identified in paragraphs 110, 117 and 119) and for not identifying the injustice caused by the faults during the second and third stages of the complaints procedure.
121. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

122. I have completed my investigation. I uphold parts a and b of Mr X and Miss Y’s complaint because I find fault causing injustice. The Council has agreed to take action to remedy that.
123. I do not uphold parts c to h of the complaint. This is because there is either no fault, or they have been dealt with in parts a and b.

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Investigator's decision on behalf of the Ombudsman