The Ombudsman's final decision
Summary: We ended out investigation because the wrong council responded to Ms X’s complaint. Ms X needs to use all stages of the correct Council’s complaints procedure (Council B). If she is not happy with Council’s B’s final complaint response, she can complain to us.
The complaint
Ms X complained about Royal Borough of Windsor and Maidenhead Council (the Council) and an organisation acting on its behalf which carried out an assessment of her son Y. Ms X said the assessment was faulty because: The officer acted outside her professional remit There was a failure to be transparent It was inappropriate to carry out a functional assessment rather than one tailored to Y’s identified needs Ms X also complained the organisation’s response to her complaint was biased and based on false, inaccurate and misleading information. She also said there had been a data breach.
The Ombudsman’s role and powers
We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended) We have the power to start, end or complete an investigation. (Local Government Act 1974, section 24A(6)) The law says we should give a council a reasonable opportunity to investigate and respond to a complaint unless in the circumstances of the case, this is not reasonable. (Local Government Act 1974, section 26(5)).
We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered Ms X’s complaint to us and the organisation’s response to her complaint. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Y’s EHC plan said he needed a functional assessment to see if he needed specialist equipment for an auditory disorder. The Council has an arrangement with an organisation to provide sensory assessments and services for children who live in its area. Council B also has a similar arrangement with the same organisation. Council B maintains Y’s Education, Health and Care plan (EHC) plan.
Council B is legally responsible for any education provision to meet Y’s identified special educational needs and for ensuring his EHC plan is reviewed each year and if necessary, arranging for any relevant professional advice to feed into the annual review. Council B was responsible for the functional assessment and the organisation carried out the assessment on Council’s B’s behalf and not on behalf of Windsor and Maidenhead.
Ms X was not happy with the way the organisation carried out Y’s assessment, so she complained. The organisation did not uphold Ms X’s complaint and so she complained to us.
Ms X told us she has also complained to Council B about this issue. Council B responded to the complaint under the first stage of its complaints’ procedure in July 2022. We told Ms X at the start of August 2022 that her complaint to us against Council B was premature because Council B was yet to respond under the second stage of its complaints’ procedure. This remains the case at the time of writing this draft statement.
Final decision
As Y’s EHC plan is maintained by Council B, it is legally responsible for the functional assessment and any complaint about it. So Windsor and Maidenhead is not responsible for the matter being complained about. I ended my investigation because the wrong council responded to Ms X’s complaint. And I consider it reasonable for Ms X to ask Council B to respond under the second stage of its complaints’ procedure. Once she has a final response from Council B, if she remains unhappy, Ms X can then ask us to investigate.
Ms X also complained about a possible data breach. The Information Commissioner is the specialist body dealing with complaints about data and is therefore best placed to deal with a concern about a data breach. Ms X should raise the matter with the Information Commissioner and there is no good reason for us to investigate given we are also not looking at the substantive issue.
Finally, Ms X raised concerns about fault in the Council’s complaint handling. But it is not a good use of resources for us to investigate complaints about complaints procedures if we are not dealing with the substantive issue. So I did not investigate the Council’s complaint handling.
Investigator's decision on behalf of the Ombudsman