Mind the gap(s)

Lottie Winson speaks with the Local Government and Social Care Ombudsman, Amerdeep Somal, about her plans to address “accountability gaps”, challenges within the Special Educational Needs and Disabilities (SEND) system, and the key findings and recommendations of the Ombudsman’s recently published Triennial Review.

Taking over as Local Government and Social Care Ombudsman in February this year, Amerdeep Somal’s short tenure has already included an election period, a new Government, and comes at a challenging time for local government, characterised by rising demand, financial pressures and the emergence of new arrangements through the devolution agenda.

Having previously served as the Complaints Commissioner to the Financial Regulators, and with a background as a lawyer and a tribunal judge, Somal has an extensive toolkit of skills and experience to apply to the role. She started her career in criminal defence work, before going on to prosecute cases and finally moving into regulation.

“I’m used to scrutinising, weighing up different arguments and evidence, and then finding where the evidence takes me. The skills around communication, decision-making and having a critical mind are all really useful skills as a lawyer that you can apply to judicial work and an Ombudsman type role as well," she says.

The number of cases coming to the Ombudsman’s service has been increasing steadily for the last three years, dominated by complex issues in the areas of SEND, adult social care and homelessness. The uphold rate has also continued to rise – peaking at 80% in 2023/24, up from 74% the previous year. In specific areas such as SEND, the uphold rate is more than 90%.

Somal attributes the rise in complaints to two main factors: more people being signposted to the service, and the financial pressures currently faced by local authorities.

She says: “People are more aware of Ombudsman schemes and their entitlement to redress when things go wrong.

“Councils are also under financial stress, which means there will be breakdowns in processes. If councils are resource strapped, there’s a greater demand on their services, and things will go wrong more frequently.”

Unsurprisingly, it is not just local authorities struggling against a backdrop of falling resources and rising demand.

According to Somal, the LGSCO continues to make the case to government for more resources to keep up with its ever-increasing caseload. Although a merger of different Ombudsman services is often floated as a possibility, she confirms this is “certainly not under discussion at the current time.”

Updated jurisdiction

In the Ombudsman’s latest Triennial Review, published last month, the LGSCO called on the Government for its jurisdiction to be updated to ensure it is able to provide redress for all local government services, including those arrangements emerging through the devolution agenda.

In September this year, the Government signed off on agreements for four areas to receive more power from Westminster as part of as its “devolution revolution” – with more deals expected to be announced in the coming months according to the English Devolution White Paper published on 16 December 2024.

The agreements will mean local leaders have the power to make decisions in areas such as transport, adult education, and housing. On this, Somal notes: “We want to be able to provide redress for all local government arrangements which are emerging through the devolution agenda, and that’s only going to get bigger – so the need for that becomes even more important.

“It also means that if there are council services being provided, they are all held to account regardless of the size of the council, the type and nature of the council.

“If public money is being used to deliver council services then they should all be held accountable in the same way. And this would apply irrespective of any current or future changes to the structure and functions of local authorities.”

Through the school gates

Another area in which Somal observers a gap in redress is inside schools. She notes: “At the moment, there isn’t full accountability, so our jurisdiction currently ends at the school gate. There’s nobody looking at what’s going on with SEND delivery once a child is in school, and that to my mind can’t be right.”

The LGSCO’s casework is increasingly dominated by complaints about special educational needs provision and the actions of schools – making up 26% of all complaints received in 2023/24.

These complaints also have the highest uphold rate, with the watchdog finding fault in a staggering 92% of the cases it investigates. Somal warns that these numbers “continue to increase rapidly”.

In 2023/24, the key issues identified by the Ombudsman were failures by councils to carry out Education, Health and Care (EHC) Plan assessments and reviews in good time, and failures to provide the support stated in an EHC Plan once a child had one.

“There are real problems at the moment in the SEND system," Somal notes. "Our recommendation in the triennial review is for us to be able to investigate how EHC plans are implemented in schools, and how support for children with additional needs, admissions and exclusions in schools is also dealt with.”

She refutes the suggestion that this change could risk adding burdens to a sector already in financial crisis. “This is about making sure things are done better for everybody. At the moment, the system doesn’t work for children, young people, teachers or councils. There needs to be a complete overhaul and review of the legislation - really stripping it back, and doing a full root and branch review – because things are not working”, she says.

On the recommendation’s potential impact on the number of SEND disputes in court, Somal is reluctant to make assumptions until the system is in place. She says however: “I think the fact there is somebody independent who is trusted – ie. the Ombudsman – would give great confidence to parents, councils and schools that someone is keeping a watching brief on this and there’s no secrecy.

“I hope that with those changes in place, schools would be held more to account and that would in turn, give parents the confidence that things are being done properly, and there might be fewer judicial reviews.”

Mandatory signposting

In 2023-24, 16% of the cases the Ombudsman received were in adult social care, and it upheld 80% of the complaints investigated.

In its Triennial Review, the LGSCO warned that while local authorities understand their responsibility to signpost to the service, the Ombudsman consistently receives far fewer complains from people who fund their own care than would be expected, given the proportion of self-funders in the care market.

The report therefore recommended introducing a legal requirement for all social care providers to signpost people to the Ombudsman, as a way of reducing this gap.

“At the moment, there’s no requirement for independent social care providers to signpost people to us, but if you’re a council providing adult social care, you would”, says Somal. “This creates a huge gap in accountability – particularly when independent providers are increasing their market share.”

Compulsory compliance?

As it stands, local authorities are not obligated to implement recommendations made by the Ombudsman when fault is found. In November, Leicester City Council publicly refused to do so in a case where a domestic abuse victim and her family were forced to live in bed and breakfast accommodation for 13 weeks longer than the maximum six-week period.

The local authority said it would only be partially acting on the Ombudsman’s recommendations as the sanctions were based on legislation that is more than 20 years old and did not take account of what the local authority says is a national housing crisis.

Meanwhile, in 2023/24, for the first time, more than 20% of the recommendations made by the Ombudsman were implemented later than agreed.

Despite this, Somal does not subscribe to the idea of mandatory recommendations.

“We know there’s a 99.6% compliance rate with our recommendations – so although there are a couple of outliers, and potentially it could help families if the recommendations were enforceable, I think the fact that we’ve got an almost 100% compliance rate without us having to enforce the issue, demonstrates that there is confidence in the service”, she says.

“When councils don’t comply, we will name them, and local people will be aware of what the case was about, what the issue was, and what the council’s response was. It’s not a good look for councils when an independent person has investigated it rigorously, makes recommendations and then for whatever reason, [it] decides not to follow them.”

She adds: “For a council to say well if we pay this redress, there are 200 other families in a very similar position so we can’t afford it - I don’t think is a defensible position to take - because actually what they should be saying is this isn’t an isolated case, there are 200 other people affected in a similar way, we need to take a thorough look at what’s gone wrong here, because this isn’t a one off, this is systemic.”

Overall, Somal describes the Ombudsman’s relationship with local authorities as a constructive one. She says: “I have visited a number of local authorities across the country and what I hear loud and clear is they really value the helpfulness and professionalism of our staff and value the guidance which they get.

“These are really important relationships, and we need councils’ cooperation to be able to really improve things.”

Three-year plan

Looking to the future, Somal points to the four main commitments set out in the Ombudsman’s three year plan - that it will: remedy injustice through “fair and rigorous” investigations; make its service easy to find and easy to use; use learning from complaints to improve local services; and be accessible to all.

In order to fulfil these commitments, Somal revealed that the watchdog will, among other things, pilot “outreach and awareness-raising” for people who struggle to use its service, create a pool of trained contractors to provide additional investigative capacity when needed, explore the potential for its investigations to draw attention to failures in council leadership and governance, and highlight cases where it thinks there are errors in the public interest, “where what we’re finding is wider and more systemic”.

She says: “We want to do more with greater resources, which we need to be able to be more effective and efficient than we already are.”

Lottie Winson is a reporter at Local Government Lawyer.