The Send Code of Practice 2015 states that all Education, Health and Social Care providers (covered by this statutory guidance) should have complaints procedures which should be made known to parent carers and young people.
Complaints are ‘a written or spoken statement in which someone says that somebody has done something wrong or that something is not satisfactory‘. Generally complaints are made where there is no legal right to appeal, or where you want to try and fix things before entering the appeal process.
How you complain and who to will vary depending on the nature of the complaint:
Complaints about EDUCATION
Early education providers’ and schools’ complaints procedures
- Early Years. The Early Years Foundation Stage (EYFS) Statutory Framework requires all registered childcare providers to have a complaints procedure.
- Childcare. For childcare provision registered with Ofsted concerns should be raised directly with the manager or provider in the first instance. For complaints in writing the nursery provider must respond within 28 days. Where the childcare provision is run by a school, the school’s complaints procedure should be used.
- Maintained schools. All maintained schools are required to have a procedure to deal with complaints and to publish details of their procedure. The governing bodies of maintained schools should make efforts to ensure that anyone who wishes to make a complaint, including a complaint in relation to children and young people with SEN, whether they have EHC plans or not, is treated fairly, given the chance to state their case, provided with a written response (including the rationale for any decisions) and informed of their appeal rights. If the complainant remains concerned after following the local complaints procedure, he or she could ask the Department for Education’s School Complaints Unit to take up the matter.
- Academies, Free schools and Independent Schools. The proprietors must, under the Education (Independent School Standards) Regulations 2010, ensure that a complaints procedure is drawn up which is in writing and is made available to parents. The procedure must allow for a complaint to be considered informally in the first instance and then, if the parent carer remains dissatisfied, there should be a formal procedure for the complaint to be made in writing. If the parent carer is still dissatisfied the complaint can then be heard in front of a panel of at least three people one of whom must be independent of the management and running of the school. Should the parent still not be satisfied they can complain, in the case of academies and free schools, to the Education Funding Agency (EFA) acting on behalf of the Secretary of State, or, in Early years and schools complaints procedures are available for use in relation to children and young people who have SEN but without EHC plans
Complaints to the Secretary of State
- If disagreements have not been resolved at the local level, under sections 496 and 497 of the Education Act 1996 complaints can be made to the Secretary of State for Education that either the governing body of a maintained school or a local authority has acted unreasonably or has failed to carry out one of its duties under the Education Acts, including their SEN duties. The Secretary of State can also consider complaints about disability discrimination in relation to a pupil at a school by virtue of Section 87 of the Equality Act 2010. Sections 496 and 497 of the
- Education Act 1996 apply only to maintained schools, not other state-funded schools or independent schools.
- Unreasonableness has been defined by the Courts as acting in a way in which no reasonable governing body or local authority would have acted in the circumstances.
- The Secretary of State can issue directions about the exercise of a power or the performance of a duty by the governing body of a maintained school or a local authority. Any directions the Secretary of State issues must be ‘expedient’ – that is, the direction can make a material difference in remedying the matter. The Secretary of State would not intervene in a case where there is another avenue of redress, such as the Tribunal.
Complaints to Ofsted
- Ofsted can consider complaints from parent carers and others about early years providers and schools, but only where the complaint is about the early years provision or the school as a whole rather than in relation to individual children, and where the parent or other complainant has tried to resolve the complaint through the early years provider’s or school’s own complaints procedure.
- Further information about school complaints and complaints to Ofsted about early years or childcare provision can be found at Ofsted’s website
- Examples of circumstances where complaints might relate to the school as a whole include:
- the school not providing a good enough education
- the pupils not achieving as much as they should, or their different needs not being met
- the school not being well led and managed, or wasting money
- the pupils’ personal development and wellbeing being neglected
- Ofsted can respond to a complaint that relates to the whole school by bringing forward an inspection, or it could decide to look at the matters raised when next inspecting the school.
Post-16 institution complaints
- Complaints at general further education colleges can be made informally to the teacher or the Principal, or through the college’s formal complaints procedure. If the complainant is dissatisfied after going through the college’s own procedure they can take this up with the Skills Funding Agency.
- Complaints at sixth form colleges and some other Education Funding Agency (EFA)-funded providers can be made informally to the teacher or the Principal, or through the college’s formal complaints process. If the complainant is dissatisfied after going through the provider’s own procedure they can take this up with the EFA.
Complaints about HEALTH (NHS)
- The NHS complaints arrangements cover the health services which a child or young person receives under an EHC plan. A complaint may be made to a service provider (for example, the NHS Hospital Trust), where there are concerns about the service provided, or to the CCG (Clinical Commissioning Group), where there is a concern about the way in which a service is commissioned or provided, and this might include concerns about the appropriateness of the services in an EHC plan.
- If your complaint is about a hospital, start by contacting its Patient Advice and Liaison Service (PALS) or complaints department.
- Local Healthwatch has a statutory role to provide patients with advice on how to take forward a complaint, or resolve an issue (local Healthwatch may also notify Healthwatch England of concerns which need to be considered at a national level). Contact details for local Healthwatch are available on the Healthwatch for England website.
- Each CCG will have available information about its complaints arrangements and will deal with complaints about any of its functions (providers of NHS services will have patient advice and liaison services (PALS), and handle complaints about the services they provide).
- Just as the arrangements for commissioning services for SEN integrate the contributions of education, health and care, so the local authority and CCG should consider integrating their arrangements for providing patient advice, liaison and complaints handling in this area.
- If a complainant is dissatisfied with the way in which the NHS has dealt with their complaint, they can contact the PHSO (the Parliamentary and Health Service Ombudsman), though usually the NHS will need to have had a chance to resolve it locally. In line with the Ombudsman’s Principles of Good Administration, in considering a complaint in relation to health services in an EHC plan, the Ombudsman will take into account this Code of Practice, and relevant legislation.
Complaints about SOCIAL Services Provision
- The Children Act 1989 places a duty on children’s social care services to safeguard and protect children. Someone who is unhappy with the way in which they or their family have been treated by these services, including during EHC needs assessments and the drawing up of plans, has the right to make a formal complaint under the ‘Local Authority Complaints Procedure’. They can write to either the Director of Children’s Services or the Designated Complaints Officer for the local authority concerned. The authority must then consider the complaint, appointing at least one person independent of the local authority to take part in dealing with the issues raised and provide the complainant with a written response within 28 days.
- If the complainant is unhappy with the authority’s response, they can request a panel hearing by writing to the authority within 28 days of the response. The panel should be chaired by an independent person. If the complainant remains dissatisfied with the handling of their complaint under the local procedures and they think a local authority has treated them unfairly as a result of bad or inefficient management (‘maladministration’), and that this has caused them injustice (such as loss, injury or upset), they can refer their complaint to the Local Government Ombudsman (LGO).
- Young people aged 18 and over can complain under regulations which prescribe:
- a procedure before investigation, and
- an investigation and response process
- The provider must acknowledge the complaint within three days and they must offer the complainant the opportunity to discuss the timing and procedure for resolving the complaint. Once that has been agreed, the complaint must be investigated and, as soon as possible after completing the investigation, a written report must be sent to the complainant explaining how the complaint has been considered, the conclusions of the report and any remedial action which has been taken or is proposed to be taken.
- A complainant who is dissatisfied with the outcome of this process can also take their case to the Local Government Ombudsman.
- Parent carers and young people who wish to complain about the way in which their concerns about the social care elements of EHC plans have been dealt with can use these complaint procedures whether they go to mediation about the social care elements of the plan or not.