Summary: Mx B complained about the Council’s response to, and handling of, a complaint concerned with their child’s special educational needs. We upheld the complaint, finding some fault in the Council’s communications with Mx B and its complaint handling. We considered this caused some avoidable distress. The Council accepted these findings and provided an apology to Mx B and a commitment to improve its service.

The complaint

1. Mx B complained the Council:

• failed to adequately remedy a complaint they made in December 2023 about special educational needs provision for their child ‘C’. Part of this concerned a failure to put in place therapy recommended in an audiology report. Mx B understood the Council had agreed to provide this from October 2023;
• failed to adequately investigate their complaint about this matter, including a failure to escalate the complaint to Stage 2 of its complaint procedure;
• failed to make adequate reasonable adjustments to meet their needs when they complained; or else keep to those reasonable adjustments it had agreed.

2. Mx B considered as a result there had been no adequate investigation into their complaint, nor a satisfactory remedy provided.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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 a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended).
6. 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.
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).
8. 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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How I considered this complaint

9. Before issuing this decision statement I considered the following:

• Mx B’s written complaint to the Ombudsman and any supporting information they provided;
• correspondence about this matter between Mx B and the Council pre-dating this investigation;
• information provided by the Council in response to written enquiries;
• any relevant law or guidance referred to below.

10. I also gave Mx B and the Council a chance to comment on a draft version of this decision statement. I considered any responses they made before finalising the content of the statement.

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What I found

Key legal and administrative considerations

Education, Health and Care Needs Assessments including social care assessments

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and arrangements to meet them.
12. There is a right of appeal to the SEND Tribunal against certain content in the EHC Plan. This can include how it describes a child or young person’s special educational needs; the specified special educational provision; and the named school or education placement (or that it names no school or other placement).
13. The courts have said that if someone has appealed to the Tribunal, the law prevents us investigating any matter which was part of, connected to, or could have been part of, the appeal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
14. Further, we cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal. (reference as above and see also R v Local Commissioner ex parte Bradford [1979]) 
15. We can look at matters that do not have a right of appeal, or not connected to an appeal, or not a consequence of an appeal. For example: 

• where a child does not receive support in an EHC Plan and we decide the cause of that has no connection to an appeal; and / or;
• the Council’s provision of alternative education if a child does not attend an education institution and we consider this not connected to (or a consequence of) a matter that was, or could have been, part of an appeal to the tribunal.  

16. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found the fact a complainant does not have a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Reasonable adjustments

17. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
18. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. One of the protected characteristics is disability.
19. The reasonable adjustment duty is in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
20. Service providers are under a positive and proactive duty to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
21. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services but must think in advance about what disabled people might reasonably need.
22. We cannot decide if an organisation has breached the Equality Act as only the Courts can decide this. But we can investigate whether an organisation has properly taken account of an individual’s rights in its treatment of them.

The Council complaint procedure

23. The Council has a corporate complaint procedure with three stages. It describes stage one as consisting of the service complained about, looking to resolve the complaint. It says that it aims to respond to those complaints within 10 working days.
24. Stage two consists of the Council reviewing its earlier response at a senior management level. It says it will investigate and aim to respond in 10 working days. Thereafter the complainant can ask its Chief Executive to review the complaint (stage three).

Background

25. Mx B is an adult with disabilities. They have a child ‘C’ who has special educational needs. Because of their needs, C has an EHC Plan. During the events covered by this complaint, the Council was under a duty to deliver education to C under a version of their EHC Plan issued in February 2023. Also, during the events covered by this complaint, Mx B had appealed the content of that Plan to a SEND Tribunal, which had yet to hear the appeal.
26. For the 2023/24 academic year, C did not attend the school named in their EHC Plan. From November 2023 to July 2024 the Council arranged alternative education provision for C.

The key facts

27. In December 2023 Mx B made a complaint to the Council that covered eight separate matters as follows, that the Council had:

• not provided consultation documents they had requested, needed in preparation for the SEND Tribunal;
• not provided certain information when it consulted a specific school;
• failed to clarify which schools it had consulted;
• wrongly recorded Mx B’s parental preference for a school;
• wrongly recorded the consultation response of one school;
• agreed to provide therapy for C from October 2023 but had failed to do so;
• made an inappropriate threat to seek costs from Mx B if it they did not agree to an adjournment of the SEND Tribunal hearing;
• copied one of its officers into emails despite them no longer working on C’s case.

28. In their complaint Mx B said they needed reasonable adjustments. They asked the Council to tell them if it needed further evidence should it propose not to uphold their complaint. They asked the Council for clarity on how long it would take to reply and not to send emails after a certain time of the day.
29. The Council said it would reply to the complaint by mid-January 2024. It then explained to Mx B it would need a further week to reply. On the day that second deadline expired the Council sent an email to Mx B saying it could still not respond. It sent this later in the day than Mx B requested. It said it would reply in a further two working days, which it went on to do.
30. In its reply to the complaint, the Council:

• upheld the complaint it had not provided consultation documents;
• upheld the complaint it had omitted to send important documentation to one school it consulted;
• upheld that it had not clarified with Mx B, all schools it had consulted;
• upheld that it had wrongly recorded Mx B’s parental preference for a school;
• did not accept it had wrongly recorded the consultation response from one school and explained its reasons for that;
• clarified that C attended an alternative education provider and that it had agreed “therapy sessions […] pending [a] final decision at Tribunal”. These had begun in December 2023. The Council accepted the sessions should have begun in October and so it upheld the complaint about delay. It also clarified the scope of speech and language therapy provided;
• said the complaint about any threat to seek costs was outside the scope of the complaint procedure, as it would potentially prejudice the appeal;
• upheld that it had copied an officer formerly working on C’s case into emails and it had now corrected that.

31. The reply offered apologies for those parts of the complaint upheld. It promised to:

• provide the documents requested by Mx B (1st bullet above);
• consult again with the school it had not sent documents to (2nd bullet above); and
• clarify which schools it had consulted (3rd bullet above).

32. On the same day they received the reply, Mx B asked to escalate their complaint. In two different emails they said:

• C did not receive audiology therapy despite the Council promising it would put this in place. The reply to the complaint had not addressed this;
• despite upholding parts of the complaint, the Council had not provided a financial remedy;
• the Council’s communication during its investigation of the complaint was unsatisfactory. It had sent its reply later than promised. It also sent the email to advise the response would be late, at a time later in the day than that requested by Mx B. And that this was a required reasonable adjustment.

33. The Council replied to these emails two working days later. It:

• recognised sending its update email later in the day than it should. It recognised Mx B had specifically asked it not to send emails after a certain time and it had breached that. It apologised for this;
• recognised it had not kept to the agreed timescale to reply to the complaint, having twice extended the time it would take to reply. It apologised for this;
• it said Mx B had not provided further evidence that led it to think its stage one reply to the complaint was wrong;
• that it acknowledged not putting all therapies agreed for C in place by the end of October 2023.

34. The Council did not send this response under stage two of its complaint procedure. It declined to investigate the complaint under stage two, instead referring Mx B to this office.

My investigation and findings

The Ombudsman’s legal powers

35. I considered first the Ombudsman’s legal powers to investigate this complaint, noting the limits set out in paragraphs 5, 13 and 14 above.
36. Much of Mx B’s complaint fell outside our powers to investigate. The complaints about the information disclosed to Mx B during the appeal process and threat of costs (the first and seventh bullets in paragraph 27) raised questions about the Council’s conduct during the appeal. This was not something I could investigate for reasons set out above.
37. The complaints about consultation and Mx B’s school preference (the second to fifth bullets points in paragraph 27) all went to the question of what education setting C should attend. This was something central to Mx B’s appeal to the SEND Tribunal. So, complaints about the extent or detail of the Council’s consultation of schools, or how it recorded information were all matters Mx B could raise with the Tribunal. For that reason, I decided these too, were not issues I could investigate.
38. That left me to consider the complaints about non-provision of therapy for C and that the Council copied one of its officers into emails inappropriately (the sixth and eighth bullet points).
39. I set out my detailed consideration on the former below, as I could investigate it in part. But I decided not to make enquiries or consider further the complaint about Council copying its officer into emails. That was because the Council recognised it did this for a time in error. In response to Mx B’s complaint it stopped the practice and apologised. I could not add to that response.
40. My investigation therefore considered three matters. First, the complaint about non provision of therapy. Second, Mx B’s complaint about the Council’s handling of the complaint and not meeting agreed reasonable adjustments. Third, the Council’s complaint handling.

The complaint about non provision of therapies

41. The EHC Plan issued to C, which was under appeal by Mx B, did not specify any particular therapeutic provision either from a speech and language therapist or audiology. It set out C needed an audiology assessment, which followed, I understand in March 2023. But it did not specify any therapy arising from that assessment. This meant the Council had no legal duty to provide any such therapy until any revised EHC Plan took effect which contained such detail. This would not follow until the appeal completed.
42. Any complaint about the need for such therapy; or its nature and extent was not something I could investigate therefore. Because that was something that only the SEND Tribunal could resolve.
43. I also could not investigate any complaint about any therapy C missed. I noted that while the appeal remained outstanding the Council offered to provide C with some therapy. This was while they attended an alternative education provision. But the Council acknowledged putting speech and language therapy in place later than it should have, for which it apologised. This meant there were several weeks when C went without therapy the Council agreed they needed. Mx B would have an understandable concern about the impact of this.
44. However, I considered this too was something a SEND Tribunal could consider. Because a parent can argue that because of a delay in therapy beginning, the Council should provide more, to make up for lost time. It is for the Tribunal to decide if it should order extra provision for the child.
45. So, I could only conduct a limited investigation into this part of the complaint. This focused on the Council’s communications with Mx B, around the alternative provision it arranged.
46. I saw an internal email, from November 2023, which said “therapy was meant to be part of the Alternative Provision pending the final decision on appeal”. Subsequent emails in that chain lead me to conclude the therapy referred to was both speech and language and audiology. The email originated from the Council’s legal advisers and supported Mx B’s account that this service had promised therapeutic support to C pending the outcome of the appeal. And that therapeutic support included that recommended following the audiology assessment.
47. However, further emails showed SEN officers had doubts about the benefits of audiology to C. The officers put forward reasons for their view which centred on the perceived merits of such therapy. As I have explained, I could not become involved in any dispute about the education merits of providing therapy to a child. And I stress again the Council was under no duty to provide any therapy in Autumn 2023.
48. But Mx B’s complaint concerned the therapy being promised but not delivered. I could not see the Council communicated that it did not consider audiology therapy a service it should provide for C while at their alternative provision setting. Nor that it gave reasons for that. Nor did its stage one complaint response address this matter. That commented only on C’s speech and language therapy provision. Although I assumed that later, as Mx B’s appeal progressed, there was more discussion on this matter as the Council also sent me emails suggesting discussion around C’s need for audiology continued around August 2024.
49. I considered the Council’s failure to communicate that it did not support audiology therapy as part of C’s alternative provision was a fault. I considered it caused Mx B some injustice, as they were left uncertain about its position, which we consider a form of distress.
50. I could not say Mx B’s injustice extended to a loss of provision for C. This was because the Council clearly did not intend to make audiology provision in late 2023 / early 2024 as it did not consider it in C’s interest. I understood Mx B would not have agreed with the Council’s opinion. But it was not one I could criticise as the SEND Tribunal would need to resolve any disagreement on this point.

The complaint about reasonable adjustments

51. The Council told me that during events covered by this complaint it did not have any written policy to record the reasonable adjustments a complainant needed, although this was its practice. The replies given to Mx B support this account, as its officer acknowledged Mx B had asked it not to email after a certain time of day. The Council has said it is now drafting a policy which will cover this point.
52. I noted also that when the Council first acknowledged Mx B’s complaint it alluded to their need for reasonable adjustments. Its letter asked them to let it know if their “disability access, communication or language needs that have changed since our last contact with you, so we can ensure our service is fully accessible and make any necessary adjustments for you” [sic].
53. I considered this fell short of best practice. The Council should have recorded in its acknowledgement letter what those access, communication and language needs were. That way, it would be clear to both its officer tasked with replying to the complaint and Mx B what service standards they could expect.
54. I did not consider Mx B’s concerns about the timeliness of the Council’s reply to their complaint, fell within the scope of a complaint about reasonable adjustments. Mx B rightly pointed out the Council had replied late to their complaint. But I considered this raised a concern more about the basic standards of customer service any complainant should expect. The Council should tell all complainants when they can expect a reply to their complaint and let them know if it later cannot meet that timescale.
55. Clearly on this occasion the Council failed to meet its initial timescale and let Mx B know about this too late, emailing them beyond the time of day it recorded it should send an email. But the Council went on to apologise for these matters. I did not consider it needed to do more.
56. This was because I did not consider its fault caused a significant injustice to Mx B as it sent its email email only marginally beyond the requested time. And while its complaint response was a week later than promised, I did not consider that a significant delay. I accepted these matters caused Mx B understandable frustration. But an apology was a proportionate remedy for this.
57. Further, I understood the Council has now sent Mx B a passport setting out the reasonable adjustments they need, which they can share with Council services when contacting them. This may help reduce the possibility of this fault repeating. However, at the end of this statement I set out some further action agreed by the Council to improve its practice in this area.

The Council’s complaint handling

58. I considered the Council was at fault for not considering Mx B’s complaint at stage two of its corporate complaint procedure. Following the stage one complaint Mx B contacted the Council and explained why they remained dissatisfied, saying it had failed to address a commitment to provide audiology therapy for C and unhappy with communications. A stage two investigation could have considered both matters.
59. However, I found the Council had still responded to the communications points in its letter sent in reply to Mx B’s stage two request. I had no reason to think a stage two response would have contained any different content. So, no significant injustice arose as a result of part of the complaint not progressing to stage two.
60. But had the Council considered the point made by Mx B about audiology therapy, then I consider it would have recognised its communication on this point was flawed. This added something to Mx B’s injustice set out in paragraph 49, as it caused some additional avoidable frustration.
61. Finally, I noted the Council had failed to meet the response time for stage one complaint responses it publishes on its website. I noted the Council sets this as an aspirational and not a hard target. I considered this reasonable, noting the Council will receive complaints of varying complexity. While Mx B’s complaint was not overly complicated, it involved consideration of several matters so I considered a response time of around 20 working days fair here, which is close to what the Council initially said. I accept it then went beyond this, but it did keep Mx B informed and I could not say any fault caused by the delay alone merited any action beyond the apology already given.

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Agreed action

62. To remedy the injustice caused to Mx B I recommended the Council should provide them with a further written apology. It went on to do this before I issued my final decision.
63. I did not recommend a symbolic payment in this case as I did not consider it proportionate. During the course of its investigation the Council recognised being at fault on several occasions and I asked it to recognise some additional failings which it has now done. But I could not pursue a remedy for many of the faults the Council identified as those matters fell outside my legal powers to investigate. While I did not consider the distress caused by the Council failings that fell within my powers to investigate significant enough to justify a symbolic payment.
64. However, I did want the Council to also make a service improvement as a result of this investigation, which it has agreed to. It has said that it is introducing a policy for its complaint service on recording reasonable adjustments. As part that policy, I recommended the Council confirm with complainants what reasonable adjustments it has agreed with them on acknowledging their complaint (or at whatever later point it agrees reasonable adjustments). The Council’s apology to Mx B confirms it will do this.

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Final decision

65. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mx B. During the investigation the Council took action that I considered remedied that injustice. Consequently, I could complete my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman