Summary: the Council failed to ensure Mrs B’s daughter’s school put all the provision in her education, health and care plan into place, delayed responding to her complaint, failed to properly consider her complaint and delayed responding to her queries about how the GCSE process would work for her daughter. An apology, payment to Mrs B, reminder to officers and training is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council:
• delayed responding to her complaint;
• provided inadequate complaint responses;
• unreasonably refused to consider her complaint about failure to put in place provision between September and December 2021;
• failed to ensure the school put in place all the provision in her daughter’s education, health and care plan (EHCP) from September 2021; and
• failed to respond to her queries about how the GCSE process would work for her daughter.
2. Mrs B says failures by the Council have caused her significant stress, led to her daughter missing out on provision and have caused her to have to go to time and trouble to pursue her complaint.

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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 an organisation’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. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. 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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What I found

What should have happened

8. The Council’s complaints procedure says stage one complaints should be acknowledged within 3 working days and a response provided within 20 working days. It says stage two responses should normally be completed in 25 working days. This may be extended to a maximum of 65 working days for complex cases.
9. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
10. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

What happened – education

11. Mrs B’s daughter has special educational needs and has an EHCP. Mrs B has complained to the Ombudsman previously about failure to put in place provision for her daughter in a previous school. We upheld that complaint.
12. This complaint concerns what has happened since Mrs B’s daughter started attending a new school in September 2021. At that point the school had been consulted based on Mrs B’s daughter’s EHCP from April 2021. However, Mrs B had appealed that EHCP and tribunal considered that appeal in November 2021 and directed the Council to make some amendments to the EHCP.
13. The head teacher of the school raised concerns about the proposed changes to provision following the tribunal. The head teacher particularly raised concerns about 1:1 provision in the proposed new EHCP and said the school’s structure did not allow for that type of provision. The head teacher also said the school could not provide a pastoral key worker and did not have access to a speech and language therapist.
14. The Council issued a final amended EHCP in December 2021. At that point the Council told Mrs B it had spoken to the school and said it had confirmed all the provision was in place except the occupational therapy provision. The Council told Mrs B the school would attempt to evidence the use of a cushion, cutlery and finger puppets through more regular recording and reporting. The Council said the school had ordered an outside bench and it, plus the completion of the library, would be in place by the next term. The Council told Mrs B it would follow up with the school about GCSEs in the New Year. In response Mrs B provided the Council with details of the provision in the EHCP which she said was not in place.
15. Mrs B contacted the Council again in March 2022 to tell it about provision in the EHCP which was not in place and to tell the Council her daughter was struggling.
16. Mrs B contacted the Council in June 2022 to ask it for more information about the proposal for GCSEs for her daughter.
17. The Council issued a final EHCP following a review in July 2022. The school contacted the Council to raise concerns about the provision in the EHCP and said it needed to have an early annual review to consider whether the school was still suitable for Mrs B’s daughter as it did not consider it could meet her needs based on the changes to the EHCP. At that point the school believed the EHCP was a draft plan only, rather than a final plan.
18. The Council issued a further draft EHCP in September 2022. The school requested an urgent meeting and said it did not consider it could deliver the provision. The school also told Mrs B that.
19. Mrs B contacted the Council in September 2022 to raise concerns about what the school had said and asked for details about her daughter’s options for GCSEs. The Council told Mrs B it believed the school could meet her daughter’s needs and said it would arrange a meeting.
20. Mrs B contacted the Council later in September 2022 to raise concerns about the lack of provision for her daughter. Mrs B subsequently identified an alternative school which I understand Mrs B’s daughter started before the end of 2022.

What happened - complaint

21. Mrs B put in a complaint on 29 April 2022. The Council told Mrs B there would be a delay responding on 24 May. The Council responded to the complaint at stage one on 10 June.
22. Mrs B asked the Council to take the complaint to the next stage on 11 June. The Council responded to the complaint at stage two on 30 August. In that complaint response the Council told Mrs B it was satisfied the provision in her daughter’s EHCP was in place but there were some elements which were delayed or not fully implemented until Mrs B contacted the Council and school. The Council offered Mrs B £150 to reflect her time and trouble. The Council told Mrs B it could not consider any concerns about failure to make provision between September and December 2021 as Mrs B’s appeal had not been finalised at that point.

Analysis

23. Mrs B complained the Council delayed responding to her complaint and failed to properly consider it. Mrs B put in her complaint on 29 April 2022. The Council did not respond to that complaint until 10 June 2022. That is outside the 20 working day timescale referred to in the Council’s complaints procedure and is therefore fault. I am particularly concerned about the length of time the Council took to respond to the complaint at stage one given the complaint response provided little detail and did not address the specific areas of concern Mrs B had raised. Delay completing stage one and failing to address the issues raised in Mrs B’s complaint is fault.
24. For the stage two complaint, Mrs B asked for the complaint to be escalated on 11 June. The Council responded on 30 August. That was not within the 25 working days referred to in the Council’s complaints procedure. However, the Council’s complaints procedure also allows it to extend the period for responding to stage two complaints to 65 working days. The Council met the latter timescale in this case. However, if the Council is unable to respond to a complaint within the 25 working day timescale I would expect it to have told Mrs B that. I have seen no evidence the Council did that in this case. That is fault.
25. Mrs B has also raised concerns about the nature of the Council’s response at stage two and whether that properly addressed her complaint. I consider the stage two response a more substantive response than the response provided at stage one. I am satisfied it largely addresses the specific concerns Mrs B had raised. However, I understand Mrs B’s concern about the response because it does not provide her with any evidence to support the Council’s conclusion the school was putting into place the provision in her daughter’s EHCP. In addition, there are elements of the Council’s response relating to the provision of individual work with Mrs B’s daughter before moving onto group work which clearly indicate the Council knew the school had not begun with individual provision as was set out in the EHCP. I am concerned the Council did not concede that point in the complaint response. That is unlikely to have reassured Mrs B the Council was taking her complaint seriously. Failure to recognise where the school had not put in place the provision in Mrs B’s daughter’s EHCP is fault.
26. I am concerned the Council refused to consider Mrs B’s concerns about the lack of provision for her daughter between September 2021 and December 2021. The evidence I have seen satisfies me the Council declined to consider whether provision in the EHCP issued in April 2021 was in place from when Mrs B’s daughter started the school in September 2021 as Mrs B had exercised her right of appeal and that was not resolved, and a new final plan issued, until December 2021.
27. Having considered the April 2021 and December 2021 plans I am satisfied there was no change for those elements of the provision Mrs B referred to in her April 2022 complaint. Only if Mrs B had raised concerns about provision which was subject to the appeal would I have expected the Council to decline to consider the complaint. As the issues Mrs B raised related to matters which were not the subject of the appeal I see no reason why the Council could not have included the period September-December 2021 in its complaint investigation. Failure to do that is therefore fault.
28. Mrs B says the Council failed to ensure the school put in place various elements of her daughter’s EHCP from September 2021 onwards. In some cases Mrs B is referring to the school providing only group activities where her daughter’s EHCP specifies the provision should start off on an individualised basis. In other cases Mrs B says the school did not put the provision in place at all or there were delays putting it in place.
29. I cannot reach a safe conclusion about whether the school provided support to Mrs B’s daughter by using specialist teaching staff trained and experienced in supporting children with social communication needs. Mrs B has provided evidence the school advertised for teaching staff without requiring those teaching staff to be experienced. Instead, the advertisements make clear although experience is desirable it is not essential. I understand Mrs B’s concern about that because her daughter’s EHCP from December 2021 onwards makes clear teaching staff need to be trained and experienced in supporting children with social communication needs. However, just because the school does not advertise experience as being essential does not mean the staff appointed who worked with Mrs B’s daughter are not experienced. As I do not have any information about the experience of staff who worked with Mrs B’s daughter I cannot reach a safe conclusion about whether this part of the EHCP was in place. I am concerned though there is no evidence the Council asked the school to provide some reassurance on this point. Nor is there any evidence the Council obtained evidence to satisfy itself this part of Mrs B’s daughter’s EHCP was in place. That is fault. I therefore consider Mrs B is likely left with some uncertainty about whether the provision was properly made for this part of the complaint.
30. The Council says it has confirmed with the school the provision in Mrs B’s daughter’s EHCP was in place. However, the Council has not provided any evidence from the school to show the provision identified by Mrs B was in place for the periods she is saying it was not. That is despite asking the Council to provide evidence on which it is relying. In some cases there is evidence from the school’s communications with Mrs B to show the provision was not in place. For any one-to-one provision the school was clear this was not something it could provide. The school had also confirmed it could not provide a pastoral key worker. In other cases, such as for the Lego therapy and puppet play work the Council’s own stage two complaint response shows this was not provided on an individual basis to start with, which is what Mrs B’s daughter’s EHCP says she should receive. In other cases, such as with the requirement for Mrs B’s daughter to sit at the front of the class, Mrs B had visited the school and verified for herself this was not in place until January 2022. Given that, plus the school’s communications indicating it could not put some of the provision in place, I consider it likely, on the balance of probability, the school failed to put in place most of the provision Mrs B has identified as not in place or delayed putting it in place for those periods where Mrs B has identified it was provided late.
31. The exceptions to that are the issue of providing screens for Mrs B’s daughter and access to a personal laptop. For both of those, the EHCP does not specifically require those provisions and instead refers to both as possible measures that could be put in place. I appreciate Mrs B has concerns about the wording of the EHCP and says it should have been more specific. However, that is a matter I cannot comment on as Mrs B would have needed to appeal to tribunal about the wording of the EHCP and the provision in it.
32. Nevertheless, despite those two areas I am satisfied, on the balance of probability, the school failed to put in place all the provision in Mrs B’s daughter’s EHCP. I am particularly concerned about that because Mrs B had previously had similar problems with a different school making provision, had repeatedly raised concerns about lack of provision with the Council, and there is no evidence the Council sought proof from the school the provision was in place. I therefore consider it likely Mrs B’s daughter missed out on the provision Mrs B has identified.
33. I am satisfied though there were substantial elements of Mrs B’s daughter’s EHCP which were in place from September 2021 and there is evidence she had settled into the school well and there were some positive reports in the early stages of the placement. There is also evidence a number of the provisions that were not in place in September 2021 were either in place by the end of December 2021, early in 2022 or at least by June 2022. Taking that into account I consider a suitable remedy would be for the Council to pay Mrs B £1,000 to reflect the missing provision. I also recommended the Council pay Mrs B an additional £300 to reflect her time and trouble in pursuing the complaint and the impact that had on her. That makes a total financial remedy of £1,300. The Council has agreed to my recommendations.
34. In addition to the financial remedy I recommended the Council remind officers dealing with complaints of the need to adhere to complaint timescales and to inform complainants when a response will be delayed. I also recommended the Council carry out a training session for complaints officers that deal with special educational needs cases to cover the issue of what can be considered as part of a complaint when an appeal has been submitted to tribunal. I further recommended the Council remind officers dealing with parents with EHCPs of the need to ensure allegations about failure to put in place provision are followed up with schools and schools are asked to provide evidence to satisfy the Council the provision is in place. The Council has agreed to my recommendations.
35. Mrs B says the Council failed to respond to her queries about how the GCSE process will be managed for her daughter. Mrs B says she has been asking the Council about that since December 2021 when it agreed a dual placement. Mrs B says despite chasing the Council has provided little information. Having considered the documentary evidence provided by Mrs B and the Council I can see Mrs B has asked the question about GCSEs on several occasions. I have seen no evidence to suggest the Council responded with any detail until September 2022. That is fault. I recommended the Council apologise for that given Mrs B’s daughter has now moved schools and therefore even if the Council had clarified the matter earlier it has not affected any provision and the information would now be out of date. The Council has agreed to my recommendation.

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Agreed action

36. Within one month of my decision the Council should apologise to Mrs B and pay her £1,300.
37. Within two months of my decision the Council should:
• send a reminder to complaints officers to remind them of the need to adhere to complaint timescales, to inform complainants when a response will be delayed and to ensure complaint responses properly address the concerns raised;
• carry out a training session for complaints officers dealing with special educational needs cases to cover the issue of what can be considered as part of a complaint when an appeal has been submitted to tribunal; and
• send a reminder to officers dealing with EHCP’s about the need to obtain evidence from schools when a parent reports that provision is not in place so the Council can satisfy itself all the provision is in place.

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Final decision

38. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman