with the Local Government and Social Care Ombudsman
What can you do if you believe the local authority (LA) has behaved unlawfully or badly in your quest to obtain the right support for your child with special educational needs?
Every local authority has a complaints system, and also a monitoring officer, for you to try to get redress. I'm not saying it's a quick or especially easy process, or that it is one that will ultimately leave you feeling justice has been done. After all, at the centre is a disabled child whose needs have, in some way, not been met, perhaps for several years - years they will not get back.
If the LA complaints system fails to work as intended, you can take your complaint to the Local Government and Social Care Ombudsman (LGSCO). Every week it publishes decisions about education and social care cases, that are likely to have taken over a year to progress from the initial LA complaint to a final outcome. It's not a perfect system and I have become concerned at the number of complaints that the LGSCO "cannot" or "will not" investigate because they have been misdirected, are too late, or because the case is active in the Tribunal system. Additionally, the Ombudsman doesn't have the ability to investigate academies or school decisions - something it wants to change.
The LGSCO also publishes reports about the state of the SEND system gained from the complaints it has received. Check the links at the end to read the Ombudsman reports we have reported on and other related articles.
Today, the Ombudsman has written for Special Needs Jungle about what it does, what you can and cannot complain about and the remedies it can offer.
All about the Ombudsman, by the LGSCO
The Local Government and Social Care Ombudsman investigates complaints about councils, and organisations providing services on behalf of councils.
Web put things right for people when things go wrong. We aim to put people back to the position they would have been had the council’s faults not occurred, and we also use the learning gained through the complaints we receive to make recommendations to improve council services for everyone.
Complaints about Special Educational Needs are amongst the most common areas of the LGSCO's work. Our investigations often focus on failures to follow policies and procedures, flaws in decision making, poor administrative practice and not considering an individual’s specific circumstances.
We are independent and impartial. Our service is free.
What the LGSCO can investigate
The LGSCO investigates complaints about the Education, Health and Care (EHC) process and delivery of the provision in EHC plans. When we refer to provision, we are talking about what is in Section F of an EHC plan.
We can consider complaints about:
- delays in the EHC process;
- who the council consulted as part of an EHC assessment or reassessment;
- the delivery of provision in an EHC plan;
- issues with personal budgets; and
- health and social care provision within an EHC plan where there is no dispute about educational provision. If this includes a complaint about health provision, we may conduct a joint investigation with the Parliamentary and Health Service (PHSO) Ombudsman.
We can also consider complaints about a council’s failure to adhere to a SEND tribunal decision. For example, where a council does not start an EHC assessment, or make or amend an EHC plan following the tribunal.
In 2019, the LGSCO published a focus report. ‘Not going to plan? Education, Health and Care plans two years on’. Our report identified common problems with the EHC processes. These included severe delays, poor planning and anticipation of needs, poor communication and preparation for meetings, inadequate partnership working and a lack of oversight from senior managers. The report details how investigations about EHC Plans have amongst the highest uphold rates of all our casework; in the past year, we upheld around nine out of every 10 complaints we investigated.
What we cannot investigate
The LGSCO cannot look at all parts of the EHC process. We cannot consider matters where the parent or carer has a right of appeal to the Special Educational Needs and Disability (SEND) tribunal. This includes where a council:
- refuses to carry out an EHC assessment or reassessment;
- does not issue an EHC plan;
- does not amend an EHC plan following a review or reassessment; or
- decides to end an EHC plan.
In addition, we cannot look into issues about the following sections of an EHC plan:
- the child or young person’s special educational needs (Section B);
- the provision named in the plan (Section F); or
- the school or other setting named in the plan or the type of school or setting (Section I).
The SEND Tribunal can resolve these matters.
Another part of the EHC process we cannot consider are the actions of education providers, as our Ombudsman, Mick King, comments below:
“The scale and nature of fault we are finding in complaints about EHC plans point to some serious underlying problems in the sector. At times we are upholding nine out of every ten complaints we investigate, which is unprecedented in our work. That is something we have highlighted in Parliament and in several high profile reports.Mick King, LGSCO Ombudsman
Fortunately, we are here to help any parent that has hit the buffers in trying to resolve matters with their local authority. And when people do come to us, we have been able to successfully remedy many hundreds of complaints every year. My frustration however is that we do that work with one arm tied behind our back, because of out-dated and bureaucratic restrictions on the scope of our work. A few simple changes to the 1970s legislation that binds us, would mean we could do so much more to shed a light on wider failings – particularly on problems inside the school gate, which currently lie outside our reach.”
Injustice and remedies
If we find a council has done something wrong, we can recommend it takes action to put right the injustice to the complainant, and to ensure it does not happen again.
When we talk about injustice, we are referring to the direct impact of a council’s mistake on a complainant and their child. This includes loss of education provision, the time and trouble a parent or carer was put, or delays for the child or young person starting a new school.
Our recommended remedies aim to put the person back into the position they would have been if nothing had gone wrong. For complaints about the EHC process, we might recommend the council completes an assessment without delay, arranges extra provision to make up for a shortfall or provides educational equipment.
In some cases, we may recommend the council makes a financial payment to recognise the impact of its mistake. This could include a council making a payment for missed education provision or to recognise the time and trouble a complainant was put to. You can find more information about our remedies on our website.
Why can't parents have a case ruled on during a SEND Appeal?
Where a parent or carer has appealed to the SEND tribunal about the provision in an EHC plan, we need to know the outcome of the tribunal before we can assess the injustice caused by the council’s mistakes.
Unfortunately, because of the limitations on what we can investigate, we cannot remedy any injustice caused during periods of time when a parent or carer had the right of appeal to the SEND tribunal. For example, if a parent or carer appeals to the SEND tribunal about the provision in an EHC plan, we cannot remedy the period between the council issuing a final EHC plan and the date of the SEND tribunal decision. In 2019, we published a report about a council’s handling of an EHC process. This report illustrates our limitations. You can read the report on our website.
How to complain to the LGSCO
Once you have complained to the council and finished its complaint procedure, you can complain to us. You should normally bring complaints to us within 12 months of you becoming aware of the problem. You can find out how to complain and access our online complaint form on our website. This video has some easy-to-follow information to help understand the process.
The LGSCO has also launched a guide to help local authorities handle complaints under the children’s services statutory complaints process.
Our Ombudsman posts:
- Ombudsman responds to our #ProvisionDenied report with news of a COVID team
- Disabled children “increasingly failed” as nearly 9 in 10 EHCP Ombudsman complaints upheld
- Poor leadership and SEND law ignorance fails disabled children
- When is a significant injustice to a disabled child, not a significant injustice?
- Using the Monitoring Officer to hold councils to account for housing, education and social services
- The SEND system is fractured, if not broken. Three new reports prove it.
- Challenging opaque, illegal social care plans for disabled adults
- The right to a suitable education: what the law says
- How a parent held her council to account for its SEND failures
- Know your child’s rights to social care support
- Dear Boris, you must act now to help disabled children #LetUsLearnToo - September 8, 2021
- What schools need to know to support learners with hypermobility and Ehlers-Danlos syndrome - August 20, 2021
- Ofsted / CQC: SEND was bad before the pandemic, it’s worse now - June 17, 2021