The Local Government and Social Care Ombudsman (“LGSCO”) is independent and deals with claims of ‘maladministration leading to injustice’. This provides an avenue to challenge a local authority’s (“LA’s”) decision without having to go to court.

Examples of situations in which a parent might complain to the LGSCO are:

• Where the LA does not provide home-to-school transport that a child is legally entitled to, resulting in parents having to pay for transport, or the child missing school.
• Where the LA fails to comply with legal deadlines to carry out an EHC needs assessment or issue an EHC Plan, resulting in the child or young person missing out on special educational provision or schooling.
• Where the help in Section F of an EHC plan is not being provided, and the child or young person is being deprived of the special educational provision they need.
• If an LA has failed to provide education for a pupil who is permanently excluded from school or who cannot attend school by reason of illness, the pupil may have been without education, or suitable education, for a long period.
• Where the LA does not agree to follow a Tribunal recommendation about social care or does not respond to the recommendation within five weeks.

The LGSCO cannot hear complaints about schools, but they can hear complaints about admissions or exclusions:

• if a parent believes proper procedures were not followed in relation to school admissions.
• if a parent has asked an independent review panel to review a school’s decision to permanently exclude their child, and the panel did not follow proper procedures.

The LGSCO can recommend a range of remedies, including compensation, asking the LA to look at a decision again, or suggesting a change in policy.

‘Maladministration leading to injustice’

‘Maladministration’ means that the processes which should have been followed were carried out poorly or not at all. It could cover things like:

• decisions being made in a way that is unlawful or unfair
• a significant delay in dealing with a matter
• incorrect information having been given out
• incompetence on the part of the person(s) dealing with the matter
• decisions being taken in an arbitrary fashion.

A person making a complaint will need to show there was maladministration of some kind, and that led to injustice.

The LGSCO considers the way a decision is reached, not the merits of the decision itself, so parents cannot complain just because they do not agree with a decision. The main test of whether there has been maladministration is whether an authority has acted reasonably within the law, its own policies and the good practice standards of local administration.

When to complain

To raise a complaint to the LGSCO parents must usually have been through all stages of their LA’s complaints procedure first. The LGSCO can say it will not look into the complaint if a parent has not completed the LA’s complaints process when they should have done.

If a LA does not agree to follow a SEND Tribunal recommendation about social care, or does not respond to the recommendation within five weeks, page 23 of this guidance says the LGSCO can accept complaints early, without the parent going through the LA’s complaints process first.

If your complaint involves COVID-19, please see the LGSCO factsheet on how they will investigate it. This includes the following helpful statement: 

“We will expect councils and care providers to have acted within law and guidance unless there were clear, compelling, and relevant reasons to do something else. We will expect appropriate record keeping, delegation, decision making, and other principles of good administrative practice, appropriate for operation during a crisis.” 

If the LA takes too long to deal with the complaint the LGSCO may accept it. The LGSCO special educational needs fact sheet suggests 12 weeks is a long enough chance for the LA to deal with a complaint before a parent complains to the LGSCO.

Complaining to the LGSCO is an alternative to judicial review – you cannot do both at the same time. You will need to consider which is the most appropriate way of addressing your problem. If you are considering judicial review we recommend you seek legal advice.

All LAs are required to have formal complaints processes and there may be stages in the process whereby the complaint is escalated to more senior officials. It is possible that a LA will remedy the reason the parent is unhappy in which case there may be no need to continue on to the LGSCO.

Some of the information in IPSEA’s model letters may help parents complain where their LA has failed in its statutory duties. These letters have not been drafted to comprise the first stage of the formal complaints process and LAs have different procedures. Parents must use their LA’s complaints process to make a formal complaint. Details of the process should be available on the LA’s website, if it’s difficult to find parents should ask the LA for it. If using an online complaint form, parents can copy and paste relevant wording from a model letter into the form. Parents can send a model letter to the LA’s Director of Children’s Services as well.

Assessing the complaint

The LGSCO will assess every complaint it receives. There must be a clear and direct link between the injustice the person is asking the LGSCO to remedy and the alleged fault on the part of the LA. A remedy cannot be provided where there is fault, but no injustice.

The LGSCO aims to assess all complaints within 28 calendar days. After the initial assessment they will decide whether or not to do a full investigation of the complaint. The LGSCO aims to complete all investigations within 26 weeks, although complex cases may take longer. After the investigation they will issue a decision, and can make recommendations to local authorities to put right the injustice. These are only ‘recommendations’ – meaning they are not binding on the local authority in the same way that, for example, a court judgment would be – but it is very rare for a local authority to ignore a recommendation.

You can find details of how to complain on the LGSCO’s website or contact their helpline on 0300 061 0614. They have also published guidance for parents on SEN-related complaints.

If complaining to the Ombudsman is not appropriate – for example, because the matter is serious and urgent – you may need to consider judicial review instead.

If you haven’t been able to find the answer to your question, you can book an appointment to speak with us.