• The complaint
• What I have and have not investigated
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to respond appropriately to a complaint about officer conduct, the Council was responsible for a breach of a child’s data and that the Council failed to adhere to the agreed wording for an Education, Health and Care Plan (EHC plan) ordered by a Tribunal. We found there was fault in the council’s complaint handling and it failed to initially adhere to the agreed wording for her son’s EHC plan. This led to avoidable time and trouble which warrants a remedy. There was no injustice to Mrs X as a result of the data breach.

The complaint

1. Mrs X complained that the officer dealing with her son’s Education, Health and Care Plan (EHC plan) appeal was rude and confrontational, acted unprofessionally and made errors which delayed the process of preparing for her appeal. Mrs X complained that the Council ignored the concerns she raised about the member of staff and delayed looking at the complaint.
2. Mrs X also complained that she received details of another child in the information sent by the Council. She was concerned that her son’s details may have been sent to someone else in error as a result.
3. Mrs X also complained that following the appeal, the Council failed to adhere to the Order by the Tribunal and made changes to the description of her son’s diagnoses.

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What I have and have not investigated

4. We have considered how the council addressed Mrs X’s complaint about the rudeness and conduct of the Council officer dealing with her, but cannot investigate any impact the officer had on the appeal itself. This is because we have no jurisdiction to consider the tribunal process or decisions made by it. We have been able to consider whether, after the tribunal process ended, the Council correctly adhered to the outcome of the Tribunal.

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The Ombudsman’s role and powers

5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
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. 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

8. I spoke to Mrs X and considered the complaint she raised and information she provided. I asked the Council for information and considered how it responded to the complaint.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Council Complaints Policy

10. The Council’s policy as at the date of Mrs X’s complaint stated an acknowledgement would be provided within three days. Responses would be provided within an agreed timescale. The usual standard was to provide a full written response within ten days but this may be extended at the request of the relevant department. The maximum timescale for a response would be 65 days in exceptional circumstances. If an extension was needed, it stated complainants would be kept up to date. If a complaint was escalated to Stage Two of the complaints process, the Council would decide whether it could add to its existing response or further clarify matters. If it could, the policy stated a manager will respond further. If nothing could be added to the existing response, the Council may decide not to respond further. The policy did not state how long a Stage Two response should take.
11. The Council has since updated its complaints policy. The required timescales have changed and the policy now specifies response times for both Stage One and Stage Two complaints.

Legislation

12. Regulation 44 of the Special Educational Needs and Disability Regulations 2014 sets out a council’s duties following a Tribunal decision. It states (part e) where a Tribunal requires a local authority to amend special educational provision specified in an EHC plan, the local authority shall issue the amended EHC plan within 5 weeks of the order being made.

What happened

Conduct of Officer A

13. Mrs X’s son has an EHC plan. On 6 November 2022 Mrs X complained about the way an officer (Officer A) had dealt with her when preparing a shared document for an appeal she submitted. She stated Officer A had been rude, abrupt and confrontational. At a virtual meeting Mrs X says Officer A was incoherent, ignored what other participants were saying and confused her son with another child. She stated the officer seemed disinterested and began smoking during the meeting. Mrs X attended at her son’s school and the headteacher and SEN Co‑ordinator (SENCO) decided because of the way the meeting was being conducted, they should leave and follow up in writing with the Council.
14. On 20 November the SENCO wrote to the Council also complaining about Officer A. In respect of her conduct at the meeting the SENCO stated Officer A repeatedly interrupted and talked over the parents and began smoking during the meeting which she found unprofessional and completely inappropriate. She asked the Council to consider her concerns.
15. Mrs X chased a response on 25 November. This was acknowledged on 26 November. On 4 December Mrs X asked Officer A’s team manager for someone new to manage her son’s case. She stated she still awaited a response to the complaint.
16. On 6 December the Council apologised for the delay in its complaint response. It stated it was extending the timescale for its response by 20 working days.
17. Between January 2023 and April 2023 Mrs X raised two further issues with the council. The issues and the Council’s response are set out separately below.
18. It was not until 11 April 2023 the Council responded to Mrs X’s complaint. This related to both the officer conduct and other issues. Regarding the officer conduct complaint, it stated before the Council could deal with Mrs X’s allegations about the officer, the officer left the Council’s employment. The member of staff left the Council’s employment on 31 December 2022. The Council invited the officer to a meeting to discuss the allegations but it received no response so it could not investigate the issues of the officer’s behaviour further.

Data Breach

19. On 5 January 2023 Mrs X received a bundle of documents from the Council that related to her son’s appeal. She reported a data breach to the Council because, in those documents was a form containing information about another child. She complained further because she was concerned that her son’s data may also have been breached if it too had been placed on the wrong file.
20. On 26 January the Council responded to the data breach and told Mrs X that it had checked the other child’s file and there was no evidence of her son’s data being mixed with that child or any other child’s files. Mrs X was dissatisfied with the Council’s response and asked for proof that the Council had investigated and that no breach occurred. In early February the Council responded further. It told Mrs X it had undertaken a check of the Council’s records and found no evidence her son’s data had been breached. It stated the form that was sent incorrectly to her was human error and further checks had been done of all the other files the relevant staff member had been working on and no other data breaches had been found. The Council stated it could not provide a copy of its investigation because it was an internal process and it would involve sharing 3rd party information which it could not do.
21. The Council provided us with copies of internal emails and evidence to show the way the data breach was dealt with. We have not shared these with Mrs X as they contain references to other files and third parties. We have been able to consider them when investigating the complaint.

Adherence to a Tribunal Order

22. On 10 February a consent order was issued by a SEND Tribunal which required the Council to amend her son’s EHC plan as set out in a working document that had been agreed between the Council and Mrs X. The order specified the date and version of the working document.
23. On 14 February the Council sent a revised, final EHC plan to Mrs X. The EHC plan template had changed since the working document had been completed. The EHC plan the Council issued used its new template.
24. On 17 February Mrs X emailed two officers at the Council to express concern that the EHC plan issued by the Council was not as fully agreed by the Tribunal and that one of her son’s diagnoses had been changed without any discussion. She sent a second email on 22 February to a third council officer. She says she received no reply to her emails.
25. The Council stated the officer Mrs X emailed on 22 February was on leave, so an out of office message was sent giving alternative contact details. It stated when the officer returned from leave a meeting was arranged with Mrs X to discuss the content of the EHC plan.
26. The Council stated much of the text in the EHC issued, was the same as the working document, word for word. However, it stated there were several instances where changes had occurred. It stated in two instances, text was removed because it was duplicated and some text originally under the heading ‘Physical and Sensory’ was placed under a different heading. There was also a change to the description of Y’s condition (referred to as ASC instead of ASD) and, importantly, it accepted the frequency of the required support and who should deliver it, did not reflect accurately what was in the working document as a whole.
27. In addition to the above, a section of text setting out how the school should use the allocated funding to provide the Section F support was changed. This was altered to the council’s standard wording rather than what was agreed in the working document. In doing so, a statement that the support by the school ‘must include the full-time 1:1 LSA support as well as support for small group work, withdrawal activities or access to other resources’ was removed.
28. On 2 March Mrs X added the issue of the failure to adhere to the Tribunal Order to her complaint.
29. Mrs X met a council officer on 3 March to discuss the matter. She stated that when she challenged the changes to the description of her son’s diagnosis and the other wording of the working document, the officer stated this was just how the council wrote things. Mrs X stated the Council did not have the power to change the wording, having agreed it via a Tribunal. Mrs X says the officer agreed all of the issues would be rectified. The Council noted it agreed an additional change requested by Mrs X would also be made.
30. On 9 March a proposed EHC plan was issued. The Council says this included the agreed changes from the meeting on 3 March. The Council asserted that Mrs X responded on 9 March but did not say whether there were outstanding issues. Mrs X told us that the EHC plan on 9 March included some corrections but there was still missing provision and wording that was not reflective of the working document.
31. We looked at the plan issued on 9 March. It still did not reflect the working document precisely. For example, the text referred to in paragraph 27 above was still different in the proposed EHC plan to the agreed working document.
32. Mrs X engaged a solicitor who sent the Council a letter before claim on 27 March. They noted the wording of the working document had not been adhered to and stated the council had to comply with the Tribunal Order.
33. On 3 April the Council sent Mrs X a final version of the EHC plan from 9 March without further changes. In doing so, the Council seems to have overlooked the assertions raised by Mrs X’s solicitor on 27 March.
34. On the same day (3 April) the Council responded to Mrs X’s solicitor. The Council’s legal team stated that the Council’s overall response was that it acted appropriately, engaging with and meeting Mrs X. The Council stated it believed all the information and provision was within the plan. It suggested the new format may have been confusing. It stated in addition, it had incorporated an additional change requested by Mrs X.
35. Mrs X’s solicitor responded, explaining that, irrespective of the new template, the content of the 3 April EHC plan was still not correct. There was no confusion and a simple cross check showed various issues remained. In some places similar wording had been used but the content had been agreed at Tribunal and the Council had no power to change it. Some text had been removed. He stated if the council did not comply with the Tribunal Order within 48 hours, they would issue Judicial Review proceedings.
36. On 11 April the Council responded to Mrs X’s complaint. In it the Council concluded the correct process had been followed. It stated, after the meeting with a council officer on 3 March the Council had issued a proposed EHC plan. As it did not receive comments within 15 days, on 3 April it issued a final plan on 3 April 2023. It repeated that it appeared the confusion may have arisen because the EHC plan template had changed since the working document was written.
37. Following correspondence with Mrs X’s solicitor the Council re-issued the EHC plan on 18 April which changed the wording to that which the Tribunal agreed.

Was there fault by the Council

Response to Mrs X’s complaint about Officer A’s conduct

38. The Council failed to respond to Mrs X’s original complaint within the usual timescale set out in its complaints policy (10 days). While the policy allows the council to extend timescales for response, this was only done well after the original deadline had passed and the Council did not adhere to the revised deadline in any event. A response to Mrs X’s complaint was only provided in April 2023. The Council noted this was because the Council had been dealing with significantly higher volumes of work in all areas of the Special Educational Needs (SEN) service. While I understand there was pressure on the SEN service, the timeliness of this complaint response represents fault by the Council.
39. The Council told us Officer A’s contract ended at the end of December 2022 and although it invited Officer A to comment in January 2023, it received no response. I note the Council attempted to raise the complaint with Officer A through the agency through which they were employed, but it has not made clear when the Council first raised the issues with the agency. The lack of timeliness in dealing with the complaint most likely affected the Council’s ability to establish Officer A’s version of events to reach a view on the complaint.

Data Breach

40. The Council acknowledged that a data breach occurred because of a regrettable human error. This was fault. However, the Council provided details of its review of files after the issue was raised by Mrs X. It looked into the circumstances and carried out checks of other files worked on by the same officer. I am satisfied Mrs X’s concerns about the potential for a breach of her own son’s data were investigated and considered properly. There seems no evidence of any breach of Mrs X’s or her son’s data. So, while the breach was fault, this caused no significant injustice to Mrs X.

Adherence to a Tribunal Order

41. The Tribunal order issued on 10 February 2023 required the Council to amend the EHC plan as set out in the agreed working document. It specified the date and version of the working document. The Council failed to keep to the agreed wording. There were various changes and some omissions in the draft and final plans the Council issued on 14 February, 9 March and 3 April.
42. While I note that the template changed after the working document was produced, this does not excuse changes to the agreed text. The purpose of agreeing a working document is to agree, precisely, the content of an EHC plan. In its complaint responses and correspondence with Mrs X and her solicitor the Council suggested the correct process was followed and there had been confusion on Mrs X’s part because of the template change. This was incorrect. In addition to any changes to headings and layout in the new template, the Council had not adhered to the agreed text in various places. The Council’s failure to do so and the way it responded to her complaint represents fault by the Council.
43. I note Mrs X engaged a solicitor to address the issue in late March 2023. The Ombudsman generally considers that engaging a solicitor is not necessary for someone to raise a complaint with a council. However, we will consider whether the circumstances were such that it was reasonable for a complainant to have done so. We decided in Mrs X’s case that it was reasonable for her to engage a solicitor. I say this because Mrs X had already made a complaint to the Council which it had not responded to for many months. Mrs X asked the Council to add the failure to adhere to the Tribunal Order to her complaint, but she was understandably concerned that the Council would not respond in a timely manner, and by waiting, she may exceed the timescales for rectifying the matter via judicial review, should it be necessary. We also noted that Mrs X had raised the matter with the Council and given it opportunities to rectify the matter prior to engaging a solicitor. So, we have recommended Mrs X’s solicitors fees are met by the Council in this case.
44. Mrs X explained to us that after the Tribunal Order, Y’s school agreed to instigate the support that was set out in working document. This was in anticipation that the revised EHC plan having the same content. However, when the Council issued the first EHC plan following the order, the school decided it could not provide support that was not included in it. As the versions of the EHC plan issued on and after 14 February did not match the working document, the school did not provide the support, as detailed in the working document, until the matter was finally corrected by an EHC plan issued on 18 April. So, for two months, between 14 February and 18 April, Y missed provision, his provision was diluted and he did not receive the full time one to one provision it specified. While much of his EHC provision was being met, I have recommended a proportionate payment to Mrs X, to be used for Y’s benefit, to reflect this period where provision was affected.
45. I have also recommended a payment to recognise the failings overall led to avoidable time and trouble for Mrs X in pursuing her complaint and to obtain the correct EHC plan. I made a recommendation that the Council ensures its guidance for officers is clear that the wording agreed in working documents should be adhered to precisely.

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Agreed action

46. Within four weeks the Council should:
47. Send a written apology to Mrs X for the failure to deal with her complaint about officer conduct in a reasonable timescale, for the failure, initially, to issue an EHC plan that accurately reflected the working document agreed at a Tribunal and for its inaccurate response to the complaint.
48. Pay Mrs X £200 to reflect the avoidable time, trouble and frustration the matter caused her.
49. Pay Mrs X’s solicitors fees of £1,663.15.
50. Pay Mrs X £280 to reflect the injustice to Y caused by the lessened EHC plan provision he received between 14 February and 18 April due to the initial failure to adhere to the Tribunal Order.
51. Within three months the council should:
52. Review staff training to ensure all relevant staff understand the importance of precisely adhering to the text within working documents agreed at a Special Educational Needs Tribunal.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. There was fault by the Council causing an injustice to Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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