Summary: Mrs X complains about the way the Council handled her complaint regarding her child, Y’s, education, health and care plan and its failure to provide some of the provision outlined in the Plan. The Council acknowledges it was at fault and offered to adequately remedy the injustice to Y. However, the Council has not provided Mrs X with a response to her request for information. The Council has now agreed to provide a response to her request and apologise for the delay.

The complaint

1. Mrs X complains about the Council’s investigation into her complaint regarding her daughter, Y’s, educational, health and care plan. Specifically, Mrs X complains the Council’s Stage 2 investigation of her complaint:
• Was late with no explanation;
• Did not properly consider her reasons to escalate the complaint to Stage 2;
• Did not provide any outcomes;
• Did not consider the time and trouble she has been put to in bringing the complaint;
• Did not apologise to Y for the faults.

Back to top

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 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)
3. 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)

Back to top

How I considered this complaint

4. I considered Mrs X’s complaint and the information she provided.
5. I considered information from the Council.
6. Mrs X and the Council had an opportunity to comment on an initial draft of this decision and also a revised draft. I have considered the comments I received from Mrs X and the Council when making this final decision.

Back to top

What I found

Relevant law and legislation

Education, health and care (EHC) Plans

7. A child or young person 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. The EHC Plan is set out in sections which include:

• Section B: Special educational needs.

• Section F: The special educational provision needed by the child or the young person.

• Section I: The name and/or type of educational placement

8. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the SEND Tribunal or the council can do this.

Reviewing EHC Plans

9. The procedure for reviewing and amending an EHC Plan is set out in legislation and Government guidance.
10. EHC plans must be reviewed at least every twelve months.
11. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:

• within four weeks of the annual review meeting the council must decide whether it proposes to keep the EHC plan as it is, amend the plan or cease to maintain it, and notify the child’s parent or young person and the educational setting;

• if the plan needs amending, councils should start the process of amendment without delay;

• if amending the plan, councils must send the child’s parent or the young person a copy of the existing plan and a notice providing details of the proposed amendments, and they must be given at least 15 calendar days to comment on the proposed changes;

• councils must issue the amended EHC plan as quickly as possible after receiving comments and within 8 weeks of the original amendment notice.

The Council’s complaints process

12. The Council has a two-stage complaints process. At Stage 1, the Council aims to respond within 20 working days.
13. If a complainant remains dissatisfied following receipt of their Stage 1 response, they should notify the Council within 20 working days conforming the reasons why they are dissatisfied. The Council will then decide if a further Stage 1 response is to be issued or that the complaint is to be investigated at Stage 2.
14. Stage 2 investigations should normally be completed in 25 working days. This may be extended to a maximum of 65 working days for complex cases.

Back to top

What happened

15. What follows is not an exhaustive list of every event that happened. It is a brief chronology of events that are relevant to the investigation.
16. On 14 June 2023, Mrs X complained to the Council that:
• Y’s education, health and care (EHC) Plan had not been issued within statutory timeframes following an annual review that was held on 17 March 2022;
• The sleep programme provision in Y’s EHC Plan was not being delivered;
• There were failures in the Council’s communication and it did not uphold its promises;
• Y did not receive support to enter training via an apprenticeship or supported internship in December 2022.
17. Mrs X requested that the Council apologise, improve services, compensate Y for missed provision and consider the impact its actions have had on her and the inconvenience caused.
18. Y and Mrs X were frustrated with the Council and decided they wanted to cease the EHC Plan. Y’s EHC Plan ceased in June 2023 at Y’s and Mrs X’s request.
19. The Council sent its Stage 1 response on 18 July 2023. The Council said the sleep programme was not identified as provision within Y’s EHC Plan and this is something she would need to pursue with the relevant health services. The Council acknowledged it was at fault for failing to meet statutory timeframes, that there were points at which the standard of communication was not adequate and that there was a shortfall in provision for Y between September 2022 and May 2023. As a result of the findings, the Council offered Y a remedy payment of £4000. This payment was accepted by Y.
20. Mrs X was unhappy with the Council’s response at Stage 1 and on 20 July 2023 she requested her complaint be escalated to Stage 2. Mrs X highlighted inaccuracies within the Stage 1 response regarding the date Y’s EHC Plan was finalised and also the sleep programme was provision in Y’s EHC Plan when the Council said it was not. Mrs X was also unhappy the Council’s Stage 1 complaint was three working days late. Mrs X says she wanted to resolve matters without escalating her complaint to Stage 2 and she refused to meet with the Council because the meeting would have been with the person who she had complained of. Mrs X later changed her mind and met with the Council to discuss outcomes.
21. The Council appointed an independent Investigating Officer (IO). There was a delay in finalising the IO’s report and the IO contacted Mrs X to advise her of the delay and that the circumstances were beyond their control.
22. The IO’s report was finalised in February 2024 and the Council issued its Stage 2 response on 22 March 2024.
23. The Council acknowledged the sleep programme was in Y’s EHC Plan as provision and that it failed to provide it. The Council offered Mrs X another opportunity to meet with council officers to discuss the ongoing service improvements within Family Services.
24. The Council apologised to Mrs X that she had reason to complain, it apologised for the shortcomings in the service she received.
25. The Council acknowledged there was a substantial delay in receiving the report from the IO, the processing and finalisation of the IO report by the Council’s Customer Rights Team took longer than anticipated and the Stage 2 response was substantially delayed. The Council apologised for the delay in considering the complaint and the time and trouble Mrs X experienced in bringing the matter to the Council’s attention. It offered her a remedy payment of £250 to acknowledge this. Mrs X did not accept the £250 remedy payment.
26. Mrs X brought her complaint to the Ombudsman on 5 April 2024.
27. On 17 May 2024 Mrs X met with the Council to discuss the outcomes she had requested at Stage 2 of her complaint. The Council produced a document entitled ‘Desired Outcomes Response 30 May 2024’. The Council provided information regarding most of the items and said it needed to seek clarification on two of the outcomes. Mrs X provided the Council with the clarification as requested but it has not sent any further correspondence to her.

Back to top

Analysis

Y’s EHC Plan

28. The Council acknowledged at Stage 1 of the complaint that statutory timeframes were not followed after the annual review of Y’s Plan, there were occasions where the standards of communication were not adequate and provision in the Plan was not provided to Y between September 2022 and June 2023.
29. In recognition of the impact of the shortfall in provision, the challenges Mrs X and Y have experienced around communication, the Council offered a financial remedy of £4000. I have considered Y’s circumstances and our guidance on remedies and there is nothing further I can add to this offer of a remedy from the Council.

Stage 2 investigation

30. Mrs X has stated in her correspondence to the Council that she believes her complaint should be investigated again ‘due to the many flaws’. Although I acknowledge Mrs X’s frustrations with the investigation, I do not consider reinvestigation is necessary because it would not result in a different outcome.
31. Mrs X says there were no outcomes as a result of the Stage 2 investigation. I have had sight of the outcomes Mrs X requested in her Stage 1 complaint, they are listed in four bullet points and summarised in paragraph 17 above. I consider the outcomes Mrs X requested have been provided by the Council and I will explain my reasons why.
32. The evidence shows the independent report was considered by the Council and it wrote to Mrs X on 22 March 2024. This letter addressed each aspect of Mrs X’s complaint, as did the IO’s report. In this letter the Council covered each outcome Mrs X requested in her Stage 1 complaint because it apologised, explained what service improvements it had made and was in the process of making, it offered a remedy for the loss of provision and it acknowledged the time and trouble she had experienced in complaining. As well as listing the service improvements it had made and was in the process of making, it offered Mrs X an opportunity to meet with the Council to discuss them further.
33. This fulfils all four desired outcomes as referenced by Mrs X in her Stage 1 complaint.
34. Mrs X says the Council has not considered the impact complaining has had on her. The letter from the Council dated 22 March 2024 states ‘I am very sorry that you have had cause to complain’ and it offered a financial payment to acknowledge ‘the time and trouble you have experienced in bringing this matter to our attention’. Therefore, the evidence shows the Council has considered the impact on Mrs X and it has offered to remedy this.
35. The Council offered to meet with Mrs X to discuss the service improvements it had made. Mrs X initially declined to discuss and meet with the Council. Mrs X declined to meet because the meeting would have been with a council officer she had complained of. Mrs X requested the Council explain in writing what service improvements it would make. This is evidenced in the Council's Stage 1 response where it refers to a review of the handover process. There is further reference in the Stage 1 complaint to ongoing service improvements including ensuring adherence to statutory timescales, improving communication and collaboration with families and strengthening staff training and supervision structures to support good practice.
36. The Council has been and currently is in the process of making service improvements recommended by the Ombudsman. Mrs X can view these on the Ombudsman’s website using our interactive map.
37. After bringing her complaint to the Council, Mrs X changed her mind about meeting with the Council. A meeting was held, there has been a great deal of correspondence between both sides about service improvements and processes. The Council’s ‘Desired Outcomes Response’ document dated May 2024 shows there are three outcomes that ‘require clarification’ but Mrs X says the Council has not got back to her with the relevant information after seeking clarification. The outcomes are 5 a), c) and 6 in the relevant document. Outcome 6 is with regards to a time and trouble remedy which the Council has already offered. Therefore outcomes 5 a) and c) are outstanding.
38. The Council sought clarification on the two matters from Mrs X, and she has provided this clarification. However, the Council has not responded to this.
39. The Council’s failure to respond to Mrs X’s request with the information it said it would is fault. I acknowledge the information Mrs X has requested is not necessarily information she is entitled to, due to it being confidential, and it not being a remedy to injustice caused directly to her. But the Council should respond to her request. Mrs X’s expectations have been raised and the failure to respond has caused frustration. This injustice is ongoing as Mrs X has been waiting for a response for nearly five months. I have made recommendations below to remedy this ongoing injustice.
40. I understand that since Mrs X brought her complaint to the Ombudsman, the Council has apologised to Y and the Council has provided her with extensive information regarding service improvements and performance data.
41. After considering Mrs X’s complaint and the Council’s response, I am of the view the Council’s offer of a remedy payment of £250 for time and trouble due to the delays in responding to her complaint and the frustration this caused, was appropriate. I understand Mrs X has not received this payment from the Council yet. I have addressed this in my recommendations below.
42. I understand Mrs X has further complaints about how the Council processed matters relating to data protection. These are matters for the Information Commissioner to consider and they are not within the Ombudsman’s jurisdiction.

Back to top

Agreed action

43. To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will:
• Pay Mrs X £250 for time and trouble as offered in its Stage 2 complaint response;
• Provide Mrs X with a response to the information she requested in relation to the Desired Outcomes Response dated May 2024 at 5 a) and c).
• Pay Mrs X £150 for the avoidable distress caused by the failure to provide the information it said it would; and
• Apologise to Mrs X for the failure to provide the information it said it would and the frustration this has caused.

Back to top

Final decision

The Council has acknowledged it was at fault and has remedied the injustice to Y but it has not remedied the ongoing injustice to Mrs X. The Council has agreed to appropriately remedy any outstanding injustice. I have therefore completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman