Summary: Mrs X complained that the Council failed to provide services for her son E that were in line with the provision set out in his Education, Health and Care Plan. The Council accepted some failings in provision and offered a remedy. The Ombudsman does not intend to investigate this complaint further. Mrs X did not accept an offer made by the Council and complains that the Council failed to negotiate about the amount of money it would pay. However, the Council’s financial remedy is higher than any that the Ombudsman would be likely to recommend so an investigation would be very unlikely to achieve what Mrs X wants.

The complaint

1. The complainant, who I have called Mrs X complained that:

• Her child, who I have called E, was not provided with occupational therapy and other services, in line with his Education, Health and Care plan (EHCP) for over a year.
• The Council proposed a remedy which was not sufficient, and
• The Council failed to negotiate regarding the offer.

2. Mrs X also complained about a number of other issues, which I have not investigated and are referred to in my paragraphs 33 to 36.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
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. 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

10. I spoke with Mr and Mrs X and made enquiries with the Council.
11. Mrs X and the Council had an opportunity to comment on my draft decision to discontinue. I considered any comments received before making a final decision.

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What I found

12. In July 2019 Mrs X wrote to the Council with concerns about the provision E was being given at his school, (“the School”). She said she did not consider his EHCP was being followed. She referred to specific concerns around about the provision of support with self-help and travel-training.
13. The Council raised the issues with the School. An interim review was arranged.
14. In August 2019 the Council noted that there had been significant issues. These were investigated and the records I have seen show that the Council ascertained that E had not been given his full quota of speech and language therapy in the academic year 2019/20 and had missed three hours of occupational therapy in the spring term of 2020.
15. Mrs X formally complained to the Council that E had not received the SEN provision named in his EHC Plan since the autumn of 2019. The Council accepted that not all the required occupational therapy (OT) and speech therapy had been provided.
16. On 17 July 2020, the Council apologised and offered Mrs X £3400 for the missed provision over a period in autumn 2019 and parts of 2020.
17. Mrs X did not consider the sum offered covered the loss of provision. She informed the Council of this on 21 July 2020, setting out what she and her husband Mr X, considered would be a more suitable offer.
18. The Council responded within the week. It stood by its offer and apologised again for the missed provision it accepted. It said it would be in contact to arrange payment of the offer.
19. On 12 August 2020 Mrs X said that the Council’s response was “totally unacceptable”.
20. The Council acknowledged this response on 18 August 2020, indicating it was keen to mediate with Mrs X.
21. On 19 August 2020 Mrs X wrote to the Council, noting that she had already attended three meetings. She asked the Council to confirm the agenda for what she described as a fourth mediation meeting.
22. The Council did not respond to that communication and on 27 August 2020 Mrs X chased a response.
23. On 8 September 2020 the Council apologised for the delay in responding. The officer said the Council would be “…keen for us to find agreement in terms of the gaps in the provision for [E].”
24. On 24 September 2020 an officer wrote to Mrs X saying that another officer had been asked to follow up on the mediation suggested. It also said that it wanted to “…move forward in terms of an agreement in relation to the gaps in provision for [E}”
25. On 26 September 2020 the officer said she acknowledged what had been ongoing since the original offer was made. Mrs X provided the Council with an email thread setting out all the correspondence so far sent between the Council and herself.
26. On 26 October 2020 she contacted the Council again to say she had received no response to her communication of 26 September 2020. Mrs X also says she followed this up in November 2020, writing to the chief executive.
27. On 15 December 2020, the Council wrote a final response to Mrs X. It again referred to the offer made and addressed other issues that I have not investigated. It said that while Mrs X had raised issues with missed provision from October 2019 in January 2020, she had not raised concerns about missed provision across the period of three years until June 2020. It was therefore satisfied with the offer it had made, which was in relation to the more recent missed provision, which it accepted.
28. Mrs X was concerned that no mediation had taken place, as had been suggested by the Council.
29. The Council says it could have been clearer with Mrs X that the offer of £3400 was its final offer. It says its primary focus was on ensuring the right provision was in place for E to ensure there were no further delays or loss of education. Mrs X does not agree that this was the Council’s primary focus and E’s educational provision is the focus of another complaint.
30. The Council says that the situation had been affected by the fact that the officer who had been the primary lead contact for the family had left the Council during the period. Mrs X says that officer still works at the Council.

Analysis

31. The Council offered mediation and repeatedly gave the impression that there were other issues to iron out with Mrs X. Its communication with Mrs X could have been better. I do not know whether the officer involved is still at the Council or not. I have not investigated that matter. It does not matter whether the officer had left the Council or not. It does not justify the Council’s failure to communicate. Mrs X was told that another officer had taken over the mediation. Mediation did not happen.
32. However, the amount the Council offered Mrs X is greater than we would usually recommend for a similar loss of SEN provision. We are not investigating the alleged loss of provision before the period the Council accepts. This is because even if the Council is wrong that Mrs X failed to raise her concerns with it at an earlier stage, she could have come to us at an earlier stage. The remedy the Council offered was, therefore, in the Ombudsman’s eyes, enough to remedy any injustice.
33. Mrs X says the Council has failed to address her points of disagreement and to negotiate. But it wrote to her in December 2020 and made its position clear. The issue is more that Mrs X does not agree with the Council’s position. Therefore, while the Council’s communication was substandard, this did not cause Mrs X an injustice of such significance that it justifies further investigation.
34. In the circumstances, it would not be proportionate for the Ombudsman to investigate. To do so would not lead to a different outcome. I therefore intend to discontinue this investigation.

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Final decision

35. I have not found the Council at fault and have completed my investigation.

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Parts of the complaint that I did not investigate

36. Mrs X complained in June 2020 that the Council had not met her son’s SEN for three years. However, while Mrs X made reference to issues with provision at an earlier date in July 2019, she did not make any reference to missed provision for three years. We only accept late complaints where there is a good reason to do so. I do not consider there is good reason in this case as Mrs X could have complained about missed provision at an earlier stage.
37. Mrs X also complained about the named provision in E’s EHCP. This is a dispute that falls under the jurisdiction of the SEND tribunal.
38. Mrs X also complained about the actions of a school. There is a statutory bar that prevents us from investigating the actions of a school, other than where it is acting as its own school admissions authority.
39. Mrs X also complained about the legality of the Council’s actions. This is a matter for a court and it would be reasonable for Mrs X to go to court if she chooses.

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Investigator's decision on behalf of the Ombudsman