When is a significant injustice to a disabled child, not
a significant injustice?

with Claire Ryan

When is a significant injustice 
to a disabled child not
a significant injustice? 

Every week the Local Government and Social Care Ombudsman (LGSCO) publishes the latest set of decisions for complaints its investigated from parents against (some) schools and local authorities. The LGSCO is the last chance saloon for complaints as parents (and young people) are supposed to exhaust the council’s own complaints process first trying to get redress.

When the Ombudsman does find for the parent (and this is not a given), it may tell the council to pay recompense to the family for “significant injustice” caused. Sometimes, although finding fault with the council, the LGSCO decides there was no “significant injustice” to the family, something they may well disagree strongly with.

Today, SEND parent and advocate, Claire Ryan, is asking the question what does constitute a “significant injustice” in the eyes of the Ombudsman

What constitutes a ‘significant injustice’? by Claire Ryan

My child’s last annual review was held in November 2018. This was an important one as he was in Year 9 and we needed to start looking plans for their 'transition to adulthood' and next steps after school. We wanted to request amendments be made to the education, health and care plan (EHCP). These included my child's needs as set out in section B, the provision made for my child in section F, and also amendments to a few of the outcomes. We had the evidence required and the school fully supported us. So, everything was going well and the paperwork was sent to the local authority (LA)to complete its part of the process. 

Unfortunately, this is when the problems began. The LA didn’t issue a decision letter [Reg 20 (10), Reg 21 (9]), it was late to start the process of amending the EHCP, to issue a draft for us to review [Reg 22 (1)&2 Reg 22(1)&(2)] and were late to issue the final amended EHCP [Reg22 (3)&(4)]We also didn’t receive any information regarding appeal with the final EHCP [Reg 22(5)]. All of these duties, which the LA didn’t deny breaching, are clearly set out in law

Complaining to the LGSCO

After going through the LA’s stage one and two complaint process, in February 2019 we asked the LGSCO to investigate. Unsurprisingly, the LGSCO’s draft decision found fault with these statutory processes whilst also criticising the LA’s poor communication and their responses to stages one and two of our complaint. 

Taken from LGSCO’s decision:

“I need to specifically look at the timings of the Council’s actions in the context of the SEND Regulations in order to determine whether the Council was at fault. If it was at fault, I need to consider whether S suffered a significant injustice.

The SEND Regulations state following the review, the Council must decide whether it proposes to maintain, continue or cease the EHC Plan. It says the Council must notify the parent within 4 weeks of the review meeting.

This delay was fault. The Council should have chased the school for the paperwork in order to meet the 4 week deadline for a decision.”

Further on in its decision, the LGSCO described provision requested to be added to section F of the EHCP as ‘priorities for school staff’. Needs to be added to section B included significant difficulties in vital foundation skills required for accessing education. One area of need, taken from a speech and language therapy report, placed my child, S’s skills on 1st centile.

However, the LGSCO described these as being “general updates to reflect S’s achievements and outcomes of assessments”. They added “I anticipate the staff were aware of these given the school carried out the review. Therefore I do not consider that S would have missed out on support.” 

I appreciate that these processes are never easy and as I didn’t want my past experiences to cloud my view when deciding what to do next. So, I left it for a while to consider their words, but I kept coming back to - how can the LGSCO possibly know this to be true? Is an ‘anticipation’ of staff to be ‘aware’ a description of the LGSCO’s expectations for our children to access vital, lawful provision? 

Claire Ryan
Claire Ryan

The LGSCO’s decision had ended with: “I have found fault with the actions of the Council. It caused unnecessary delays in finalising S’s EHC Plan. I do not consider these delays to have caused S a significant injustice. He continued to receive relevant support at school. significant injustice.  As a result I have completed my investigation”

A significant injustice

Putting aside the other points for a moment, what on earth constitutes a ‘significant injustice’? How much harm is enough? Why do our children need to be harmed before action is taken? Is it enough for the LGSCO to ‘anticipate’ our children are receiving lawful provision? How long is too long to delay support? Is this the same for all investigators? Is there a set time limit, or cost when ‘injustice begins’? 

I was left with more questions than I began this process with and decided I couldn’t let it go. So, I initiated a complaint against the LGSCO’s decision. I wanted to know why, if the LGSCO found fault with an LA they wouldn’t automatically make recommendations for improvements to LA policy? The LA had cited ‘staff sickness’ as a reason for the delay, an excuse we’d heard many times over the years. Surely, from reading the additional evidence I sent with this complaint, they’d see this just how common this excuse is? 

The LGSCO had said,

We have not recommended any changes to the Council’s policies and procedures. This is because, we did not find fault with these. The Council was at fault for causing delays in progressing S’s EHC Plan. However, this appears to be due to staff sickness which resulted in an email/letter being missed.”….” We have viewed this as a one-off error rather than a failure of policy and procedure.”

The LGSCO’s sole purpose is to provide a small amount of accountability to families, so I found it difficult to comprehend and deeply concerning that they would use 'one-off' to describe something which is so widely reported. I tried a different route with this point in the final complaint. Rather than simply considering this incident in isolation, and in order to address the notion of ‘significant injustice’, I asked the LGSCO consider the cumulative effect of constant delays, untruths and the local authorities open disregard of statutory duties.

Cumulative injustice

In S’s case, these have continued for 10 years. These delays, spanning over an extended period of time, (including those included within a previous upheld LGSCO complaint for S), can never be effectively recovered and have caused extreme and avoidable stress to S and us as a family. I provided documents full of evidence of unlawful and traumatising LA decisions and actions; these weren’t just in relation to S but involved my other children too.

The LGSCO replied, “We can understand why you feel the cumulative impact of 10 years of the Council’s actions should be considered as part of this complaint. However, we consider the complaint before us and the injustice caused as a result. We will not make recommendations about matters that we have not investigated or that happened years ago.” 

But why? Isn’t that how data is gathered, measured and applied to inform improvements? 

It went on to say, “We recognise that we upheld a complaint of yours in the past. However, upholding one case does not necessarily mean there is a pattern. If you had been regularly complaining to us about similar issues e.g. delays, and we had been upholding them, we might take a different view.” 

Doesn’t this imply that parents, many of whom also have SEND, not only have to navigate LA unlawfulness, but must also complain to the LGSCO every time in order for it to be acknowledged as happening? Is this a fair expectation and responsibility to burden vulnerable families with? If I’d complained each time the LA had breached the law, might that then constitute a ‘significant injustice’

An unfair onus on the parent

I understand that it might be difficult to empathise with us without first-hand experience of the system as a SEND parent, but I often wonder if a sense of numbness towards people and lives behind these complaints develops, the more people are exposed to them? The thing about complaints though, is that while they might look like a pile of words, sometimes full of emotion, sometimes oozing with an accumulation of stress and frustration, they also represent hope. Or at least, they should. 

If it’s your job to consider or judge SEND parents' experiences, please remember that more often than not, these ‘piles of words’ don’t even come close to describing a full picture of what we’ve been through to get to this stage. I haven’t met a SEND parent who can’t just describe one ‘significant injustice’ in relation to their child, they can often describe multiple instances. 

“Today is a landmark moment in improving the lives of children with SEND and their families. These reforms put children and parents at the heart of the system. For too long, families have found themselves battling against a complex and fragmented system. These reforms ensure support fits in with their needs and not the other way round - they will result in a simpler and more joined-up system that focuses on children achieving their best.”

Former Children and Families Minister Edward Timpson when he reforms were introduced

From the LGSCO, attached to the decision to our final appeal:

“Our decisions are final and there is no appeal. You can apply to the High Court to challenge an Ombudsman’s decision because it is legally flawed – this is called judicial review – but you have to act quickly and you may need to take advice, for example from a solicitor, law centre or Citizens Advice Bureau. There is no other way to challenge our decisions.” 

Also read

Don’t miss a thing!

Don’t miss any posts from SNJ - simply add your email address below. You must click the link in the confirmation email you’ll receive to activate your free subscription.

You can also keep up with us by following our WhatsApp Channel!

Want more? Be an SNJ Patron!

SNJ is a non-profit company and everyone who writes here does so voluntarily. We need your support to help us with costs by donating once or as a regular patron. Regular donors get an exclusive SEND update newsletter as thanks! Find out more here

Tania Tirraoro

We LOVE to hear what you think... please take a minute to add your views here, so your comment is seen by all!

This site uses Akismet to reduce spam. Learn how your comment data is processed.