Summary: Mrs X complains the Council has failed to provide the outcomes it promised in its Stage 3 response to her complaint about its failure to ensure her son was receiving the educational provision as specified in his Education, Health and Care Plan. The Council is at fault for failing to communicate to Mrs X the actions it had taken in response to her complaint. The Council is also at fault for overlooking a key piece of information that resulted in a delay in reimbursing costs to Mrs X. The Council has made service improvements and it has agreed to remedy the outstanding personal injustice to Mrs X.

The complaint

1. The complainant, who I shall refer to as Mrs X, complained to the Council about its failure to secure the educational provision in her son, Y’s, Education, Health and Care (EHC) Plan. Mrs X complains to the Ombudsman that the Council has failed to provide the outcomes it promised in its stage 3 complaint response.

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The Ombudsman’s role and powers

2. 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)
3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)
5. 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

6. I considered Mrs X’s complaint and the information she provided.
7. I considered the information I received from the Council in response to my enquiries.
8. Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received from Mrs X before making this final decision. The Council advised me it had no comments to make.

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What I found

Law and statutory guidance

Education, Health and Care (EHC) Plans

9. An EHC Plan is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHC Plan identifies educational and health needs and sets out the support to meet those needs.
10. The EHC Plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
11. Under Section 42 of the Children and Families Act 2014, when an EHC Plan is maintained for a child or young person the local authority must secure the special educational provision named in the plan. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if the Council asks another organisation to make the provision and that organisation fails to do so, it remains responsible. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

The Council’s Corporate Complaints Procedure

12. The Council has a three-stage complaints process. At Stage 1 of the process the Council says it endeavours to provide a response within 10 working days of receipt.
13. At Stage 2 of the process, complainants can ask for a senior manager to review the response to their complaint. The senior manager will investigate and aim to respond within 10 working days.
14. If the complainant is unhappy with the Stage 2 response, they can request the Chief Executive to review their case. The Chief Executive or delegated senior officer, will investigate and aim to respond within 10 working days.
15. At each stage of the process the Council says it will contact the complainant if it is unable to respond within the stated timeframes.

What happened

16. This is a brief summary of the events I feel are relevant to my investigation. It is not an exhaustive list of everything that happened.
17. Y is 16 years old and has complex special education and health needs. Due to his complex needs he has an EHC Plan maintained by the Council. He attends a specialist placement and is educated one year below his chronological age.
18. Y’s first EHC Plan was finalised in April 2017. On 5 October 2022 Mrs X complained to the Council about its failure to implement the provision specified in Section F of Y’s EHC Plan.
19. The Council responded to Mrs X on 4 November 2022. It upheld parts of her complaint. The Council said the school firmly believed it was meeting all provision as set out in Y’s EHC Plan however some of the prescriptive tools included in the Plan were outdated. The tools used by the school were more suitable for Y at this stage of his education. The Council said that whilst the exact provision as written in Y’s EHC Plan was not presently being delivered, it was of the view that provision was in place and at the appropriate level for Y. Therefore, the Council upheld the complaint on the grounds that the provision specified in order to meet the outcomes was not being delivered in the precise way as recorded in Y’s EHC Plan.
20. Mrs X also complained she had to commission and pay for an Educational Psychologist (EP) privately due to the absence of EP input ahead of Y’s phase transfer annual review. Mrs X requested the Council reimburse the cost of the EP advice. This was not upheld at Stage 1 or 2 of the Council’s complaint process because additional assessments can only be funded by the Council if there is specific prior agreement to fund the work. In this case, there was no prior agreement for the EP input to be commissioned. At Stage 3, the Council acknowledged that despite the absence of any agreement to commission the EP assessment, there was evidence of the Council agreeing to Mrs X’s intention to commission an independent EP. The Council upheld this complaint at Stage 3 and reimbursed the cost of £1864.38 to Mrs X.
21. The Council acknowledged that work was required to clarify Y’s provision in his EHC Plan and there was a need to review the robustness of its monitoring procedures with the school. The Council also identified that communication between the school and parents required improvement.
22. Mrs X brought her complaint to the Ombudsman because she was unhappy the Council had not acknowledged the time and effort it had taken to complete the complaints process.

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Analysis

23. The Council acknowledged that additional work was required to clarify Y’s provision in his EHC Plan and the school needed to improve communications with parents and carers.
24. As part of my investigation, I asked the Council to provide me with an update on the outcomes it specified in its Stage 3 response to Mrs X. The Council has completed monitoring visits at the school, discussed the issues raised by Mrs X in her complaints with the school, it is working on a statement relating to the commissioning of independent providers by parents and a communication plan between the school and parents has been implemented. I also understand that Y has an updated EHC Plan in preparation for his transfer to college.
25. The Council informed me that it did complete the outcomes specified above but its investigation showed that the Council’s actions were not formally communicated with Mrs X due to a senior council officer leaving the organisation. The information shows the Stage 3 response was sent to Mrs X on 1 February 2023 and the senior council officer left the organisation on 31 March 2023. The Council wrote to Mrs X in June 2023, as a result of my investigation, to advise her of the actions it had taken. If the senior council officer was unable to provide Mrs X with the update before his departure, it is reasonable to expect the Council to have a process whereby outstanding tasks are handed over, and not missed, when employees leave their posts. Therefore, I consider this failure to communicate with Mrs X as fault.
26. The Council was aware that communication from the school to parents required improvement and therefore there was an increased reliance from Mrs X on the Council to provide her with information. This fault resulted in Mrs X feeling frustrated with the Council and could have avoided her bringing her complaint to the Ombudsman.
27. When Mrs X first brought her complaint to the Ombudsman, the Council had not provided her with the outcome of her Stage 3 complaint. At Stage 1 and 2 the Council had not upheld her complaint about the EP report she commissioned and paid for privately. At Stage 3 however, this complaint was upheld based on correspondence from April 2022 that demonstrated she was told by the Council it ‘would be a good idea’ for her to commission an independent EP. Mrs X was reimbursed the cost of the EP report, £1864.38, on 6 February 2023. I consider the Council at fault for overlooking correspondence from April 2022 when investigating Mrs X’s complaint. The consequence, or the injustice, of this fault is that Mrs X could have been reimbursed this significant amount in October or November 2022, when the Council first began investigating her complaint.
28. Mrs X is unhappy with the length of time the Council took to investigate her complaints. Mrs X first complained to the Council in October 2022 and received the final response at Stage 3 in February 2023. I appreciate this feels lengthy but I do not find fault with the Council. This is because the information shows the Council sent holding letters to Mrs X when it was unable to respond within the relevant timescales and this is in accordance with its policy. The holding letter from 27 January 2023 stated the Council was expecting to be in a position to send its Stage 3 complaint response by 10 February 2023 but the Council prepared this earlier than stated and it was sent to Mrs X on 1 February 2023. I also note the Council met with Mrs X to discuss the complaints, there were some additional matters raised at Stage 3 and there was a break for Christmas and New Year during the relevant period. Therefore, taking all of these factors into account, I do not find fault with the Council on this aspect of Mrs X’s complaint.
29. I understand Mrs X has said she has been financially affected and has requested compensation for the 300 hours she has spent dealing with the complaint matters. However, our recommended payments are symbolic, not purely financial. It is not our role to assess economic losses or award compensation.

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Agreed action

30. To remedy the injustice caused by the faults, the Council has agreed, that within four weeks of this final decision, it will:
• Apologise to Mrs X for the identified faults;
• Pay Mrs X £300 as a symbolic payment to reflect the delay in reimbursing costs for an EP due to the Council’s oversight when investigating her complaints and the unnecessary time and trouble she was put to in pursuing this particular aspect of her complaint; and
• Pay Mrs X £150 as a symbolic payment for the uncertainty caused by the delay in advising her of the Council’s actions in relation to the outcomes specified at Stage 3 of the complaints process.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. The Council is at fault and this caused injustice to Mrs X and Y. The Council has already taken appropriate action to remedy the injustice to Y and it has agreed to remedy the outstanding injustice to Mrs X. I have now completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman