Summary: Mrs X complained the Council did not provide an appropriate remedy when it upheld her complaints about delays in issuing her son’s Education, Health and Care plan and a lack of alternative education provision. Mrs X also complained the Council does not accept privately commissioned reports as part of its assessments and that it delayed responding to her complaint. She says the Council’s actions caused avoidable distress to her son and her family. We found fault by the Council. The Council has agreed to provide an apology and a financial remedy and to implement several learning outcomes.

The complaint

1. Mrs X complained the Council did not provide an appropriate remedy when it upheld her complaints about delays in issuing her son’s Education, Health and Care (EHC) plan and a lack of alternative education provision. Mrs X also complained the Council does not accept privately commissioned reports as part of its EHC plan assessments, and incurred delays in the handling of her complaint.
2. Mrs X also complained the Council did not record her complaints separately and that it provided misleading information to the Department for Education.
3. Mrs X says the Council’s actions caused avoidable distress to her son and the family and negatively impacted both hers and her son’s mental health. She would like the Council to apologise to her son and to reconsider the financial remedy and service improvements it has offered.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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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What I have and have not investigated

8. I have investigated the complaints referred to in paragraph one and have considered the remedies offered by the Council. My investigation looks at the period dating back to May 2022. I have not investigated events prior to this date because this period relates to a late complaint.
9. I have not re-investigated the complaints upheld by the Council following its own investigation. This is because further investigation would not add to the previous investigation or lead to a different outcome.
10. I have not investigated the complaints referred to in paragraph two. This is because there is not enough evidence of fault to justify investigating these complaints.

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How I considered this complaint

11. I considered the information provided by Mrs X.
12. I made enquiries to the Council and considered the information it provided.
13. Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.
14. 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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What I found

Special educational needs and Education, Health and Care plans

15. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
16. The Children and Families Act 2014 (‘the Act’), the Special Educational Needs Code of Practice 2015 (‘the Code’) and the Special Educational Needs and Disabilities Regulations 2014 (‘the Regulations’) provide detailed guidance to councils about how they should manage the process of:
• assessing children and young people for an EHC plan;
• how to decide whether to issue a plan;
• the content of the plan; and
• how to implement, monitor or cease a plan.
17. Councils should ensure an annual review of the child’s EHC plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate.
18. The Regulations state councils must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. The Code states if a council decides to amend the plan, it should start the process of amendment “without delay”.

Alternative provision

19. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
20. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.

The Council’s complaints policy

21. The Council’s corporate complaints procedure has three stages. At stage one, the Council tries to deal with the complaint informally to resolve the issue. At stage two, the Council carries out an investigation and sends a response within 15 working days. If a service user remains unhappy, they can escalate the complaint to stage three. The Council says it will issue a response to stage three complaints within 25 working days.

What happened

22. This chronology includes key events in this case and does not cover everything that happened.
23. Mrs X’s son, Child A, has an EHC plan. In mid-2022, the annual review of Child A’s EHC plan took place.
24. In March 2023, Mrs X raised several complaints to the Council. Mrs X complained the Council:
• Did not provide suitable alternative provision while Child A was absent from school;
• Incurred delays in its review of Child A’s EHC plan;
• Made unprofessional comments about her in its internal correspondence, as identified as a result of a subject access request, and
• Does not accept privately commissioned reports as part of the EHC plan review process.

Mrs X asked the Council not to combine the separate complaints into one complaint record.

What happened next

25. The Council says it agreed the final EHC plan in early May 2023.
26. The Council considered Mrs X’s complaints at stage two of its complaints procedure and provided its complaint response on 10 May 2023.
27. Mrs X escalated her complaint to stage three as she was unhappy the Council took more than 15 working days to respond. Mrs X said she had not agreed to any time extensions and said she was unhappy the Council had combined her complaints by providing a single response. Mrs X asked the Council to provide a suitable remedy for the complaints it upheld. Mrs X also complained the Council provided misleading information to the Department for Education (DfE).
28. The Council provided its final complaint response in June 2023. It upheld most of Mrs X’s complaints, including her complaints about a lack of alternative provision, delays in the EHC plan process and unprofessional comments made in its internal correspondence. The Council did not uphold Mrs X’s complaints that it did not accept privately commissioned reports as part of the EHC plan process, or that it provided misleading information to the DfE. The Council said it does not have a blanket policy, formal or otherwise, of disregarding privately commissioned independent clinical advice. The Council said it would not routinely consider such information without it first being screened by local NHS senior staff or a relevant NHS service manager. The Council apologised to Mrs X for the fault it identified and offered a financial remedy. It also identified some learning outcomes which the Council said it would implement.
29. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us.

Analysis – Mrs X’s complaint about the Council’s remedy

30. Mrs X complained the Council did not provide an appropriate remedy when it upheld her complaints about delays in issuing her son’s Education, Health and Care (EHC) plan and a lack of alternative education provision.
31. As part of its final response, the Council told Mrs X about several learning outcomes it identified following its complaint investigation. It also offered a financial remedy, setting out the amounts offered for each aspect of the complaint. The Council says it considered the Ombudsman’s guidance on remedies as part of its calculations. It says after further careful consideration, it considers the remedies it has offered remain appropriate. It says Mrs X has not formally accepted the offer and the Council has not made any payments to date.
32. It is positive the Council has itself identified several learning outcomes and has offered a remedy to address the injustice to Mrs X and Child A. I have reviewed the Council’s rationale for the financial remedies offered and have found they are in line with our guidance. The amounts are appropriate with the exception of the remedy offered in recognition of the distress caused by the content of the Council’s internal emails.
33. Mrs X says the emails caused a significant emotional impact and a loss of trust in the Council. I acknowledge Mrs X’s comments and the fact that she was communicating with the Council to resolve her concerns regarding alternative education provision and the issue of an EHC plan to Child A, issues which the Council subsequently acknowledged fault for.
34. I have found the financial remedy offered by the Council regarding this aspect of the complaint does not adequately reflect the stated impact to Mrs X. This is because there were several emails which contained comments for which the Council apologised. I acknowledge the Council says it provided the emails to Mrs X in one instance as part of a subject access request. Whilst Mrs X did not receive the emails over a period of time, the content of a number of the emails caused her distress, and the cumulative effect of them increased the emotional impact to her. As a result, I have recommended an increased financial remedy for this aspect of the complaint. The final section of this decision statement provides more information about the recommended actions.
35. The Council offered a financial remedy as a symbolic payment to recognise three missed terms of education provision, dating back to May 2022. I acknowledge Mrs X’s comments that the impact to Child X was for a longer period than the three terms identified. However, the complaint relating to the period prior to May 2022 is late; as a result, I have not recommended a remedy for the period prior to May 2022.
36. I have considered the learning outcomes already identified by the Council as part of its complaint response and found them to be appropriate to address the matters identified as part of the Council’s investigation. In addition, I have recommended further service improvements; the final section of this decision statement provides more information about the recommended actions.

Mrs X’s complaint about the Council’s consideration of privately commissioned reports

37. Mrs X complained the Council does not accept privately commissioned reports as part of its EHC plan assessments. The Council says it does allow such reports and/or NHS reports as part of the process.
38. The Council acknowledges some of the wording in its correspondence to Mrs X was not factually correct and was in places badly worded. However, the Council says it follows the Code and if parents provide professionally commissioned and/or NHS reports, and if it is felt the report findings meet the needs of the child, it takes advice from the Council’s medical officer. The Council says if the recommendations from a privately commissioned report are considered to be reasonable and appropriate for the child’s needs, they would be accepted.
39. I acknowledge the Council’s comments, and its explanation as set out in its final response which says the Council does not have a blanket policy, formal or otherwise of disregarding privately commissioned independent clinical advice. I have seen no evidence to support Mrs X’s complaint the Council does not accept privately commissioned reports as part of its EHC plan assessments. As a result, and given the explanation provided by the Council, the Council is not at fault regarding this aspect of the complaint.

Mrs X’s complaint about delays in the complaints process

40. Mrs X complained the Council did not adhere to its complaints policy of providing a response at stage two within 15 working days. The Council says in exceptional circumstances, it may extend the timeframe for providing a response.
41. Mrs X says she does not consider the circumstances under which the Council extended the timeframe to be exceptional. She says the complaints policy specifies the Council will respond within 15 working days.
42. The Council has provided information relating to its corporate complaints staff guidelines. This sets out the process for considering extending the usual 15 working day timeframe when responding to a complaint.
43. It is for the Council to decide what constitutes ‘exceptional circumstances’ when considering extending a deadline for a complaint response. The Council has explained its rationale for why it considered it necessary to extend the response time in this case. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome. There is no fault in how the Council made its decision regarding this matter, so I cannot question the outcome. On this basis, the Council is not at fault for extending the complaint response deadline.
44. However, at the time of Mrs X’s complaint, neither the Council’s complaints policy nor its website specified how or if the Council may extend the response timeframe. The guidance for complaints staff is available on the Council’s internal communications network and is therefore not shared publicly. Whilst the Council may extend the timeframe in exceptional circumstances, this process was not explained as part of the Council’s publicly available complaints procedure at the time. This lack of information is fault as the complaints policy did not provide a complete view of how the Council may consider a complaint. The Council says it has now updated its website regarding this matter. Nevertheless, the lack of information regarding this at the time of Mrs X’s complaint added to her frustration about delays incurred by the Council.

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Agreed action

45. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mrs X for the fault identified;
2. Provide an apology to Child A for the missed alternative education provision and delayed EHC plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apologies I have recommended in my findings;
3. Make a symbolic payment of £3,000 (£1,000 for each term) in recognition of the missed education provision, to be used for Child A’s educational benefit;
4. Make a symbolic payment of £500 in recognition of the distress caused to the family as a result of the delays identified;
5. Make a symbolic payment of £300 in recognition of the distress caused to Mrs X as a result of the Council’s correspondence about her;
6. Make a symbolic payment of £200 in recognition of the time and trouble taken in pursuing the complaint;
7. Implement the learning outcomes as specified in the Council’s final complaint response;
8. Remind staff to adhere to statutory guidance and the Council’s own policies about providing alternative education provision;
9. Remind staff to adhere to statutory guidance regarding timescales as part of the EHC plan process, and
10. Review the Council’s website and corporate complaints policy to include information about the possibility of extending the usual complaint response times under exceptional circumstances.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I have found fault by the Council and the Council has agreed to take the above action. I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman