The Ombudsman's final decision
Summary: The Council failed to complete the actions agreed following an earlier Ombudsman investigation within the agreed timescales and two of those actions remain outstanding. The Council will take further action to remedy the continuing injustice, including making a further payment to Mrs X.
The complaint
We upheld a complaint against the Council in April 2022, following which the Council agreed actions to remedy the injustice caused. The Council failed to provide evidence of compliance with the remedy actions within the agreed timescales, and one action remains outstanding.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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)
How I considered this complaint
I considered the information provided by Mrs X and the Council.
Mrs X and the Council had an opportunity to comment on two draft decisions and I considered their comments before making a final decision.
Background
Mrs X complained the Council failed to secure the provision in her son, Y’s Education Health and Care (EHC) plan, failed to oversee the annual review process, and there were failings with the complaints process. We upheld the complaints and the Council agreed to take action to remedy the injustice caused.
It agreed to take the following action within one month of our final decision: Apologise to Mrs X, pay her £500 to recognize the frustration caused and the time and trouble taken pursuing the complaint, make a payment for the lost specialist education needs provision of £2,250, and reimburse the cost of a dyslexia assessment; Either secure the ICT equipment set out in Y’s EHC plan or provide Mrs X with a personal budget to purchase the equipment; Provide Mrs X and Y with a provision map setting out how all the provision in Y’s EHC plan will be delivered; Issue a final amended EHC plan for Y to prepare him for the transfer to post-16 provision; Provide the Ombudsman with an update on progress with the action plan it developed following an independent review inspection; and Remind officers investigating complaints about the Ombudsman’s ‘Guidance on Effective Complaint Handling in Local Authorities’ which gives advice on what to include in decision letters.
What happened We issued our final decision on Mrs X’s complaint in early April 2022.
In early May, Mrs X contacted us to say the Council had not completed the agreed actions. Around the same time, the Council contacted us to say there had been a delay in completing the agreed actions due to staff holidays.
In mid-May, the Council provided evidence it had: written to Mrs X to apologise and had raised a query with her about one of the other actions; had made the agreed payments; and had completed action f).
In early June, we wrote to the Council to confirm we were not satisfied it had completed the remedy actions and had opened a new case to consider its non-compliance. Mrs X told us that she had ordered the ICT equipment and asked the Council to reimburse her. She also told the Council the school needed to provide access to some software to enable Y to fully access the ICT equipment and asked it to arrange this. She asked the Council to contact the school to arrange this but I have not seen evidence it has done so.
Later in June, the Council: issued a final amended EHC plan for Y (completing action d); confirmed it had chased the school to provide the provision map (action c); and provided an update to satisfy action e).
Analysis In April 2020, the Council agreed the actions set out above to remedy the injustice caused by the faults we identified. It said it would complete these actions within one month of the date of the final decision. It did not do so. The Council is at fault for non-compliance with an agreed remedy.
When a council agrees to our recommendations, it should make every effort to comply within the agreed timescales. The Council did not do this in this case. This is a breach of trust, causes uncertainty and frustration for complainants and risks undermining public confidence in the Council.
The Council has now completed most, but not all, the agreed actions.
It has not provided the provision map (agreed action c). Although it told us it had asked the school to do this, the school has not provided the information. Since Y is due to leave the school at the end of term, it is unlikely the Council will be able to complete this action. This has caused Mrs X ongoing uncertainty as to how the Y’s provision is being delivered. Therefore, I will consider what further action the Council should take to remedy the injustice caused to Mrs X and Y by the non-compliance.
The Council has also not provided evidence that it agrees to reimburse Mrs X for the ICT equipment she purchased, nor that it has reimbursed her. This has caused additional frustration and uncertainty for Mrs X, who has had to use her own resources to finance the equipment. I will consider what further action it should take in that regard.
Agreed action
Following my first draft decision, the Council: obtained a provision map from Y’s school for the academic year 2021-2022; reimbursed Mrs X for the costs of purchasing the ICT equipment set out in Y’s EHC plan; and set up regular meetings with Mrs X to address ongoing concerns about Y’s education and SEN support.
The Council will, within one month of the date of the final decision, apologise to Mrs X and to Y for failing to comply with the agreed actions following our earlier decision, and pay her a further £100 for the frustration caused by the failure to comply, and her time and trouble pursuing the Council.
Further, the Council will, by the end of September 2022, review the software that Y needs to make full use of the ICT equipment in his new educational settings and write to Mrs X to explain the action it proposes to take. It will ensure all such actions are completed by the end of October 2022.
The Council will provide us with evidence it has completed the above actions.
Final decision
I have completed my investigation. I have found fault leading to personal injustice and have recommended further action to remedy that injustice.
Investigator's decision on behalf of the Ombudsman