Summary: Mrs X complains the Council was at fault as it failed to arrange suitable care provision for her son Y’s needs causing distress and impact onto the family. We found fault because the Council did not ensure the care provision specified for Y in his Education Health and Care Plan was in place by September 2023. We have recommended a suitable remedy for the injustice caused in this case so have completed our investigation.

The complaint

1. Mrs X complains for her son Y the Council has failed to arrange suitable care provision for his needs. In particular Mrs X says the Council:
• Misled her and a SEND Tribunal about the residential school place it was offering Y as the placement for his Education Health and Care Plan (EHC Plan). Mrs X says she agreed to the placement on the understanding it was a full-time residential placement, but the Council later said it was only for four days a week.
• Failed to provide the care support it agreed for Y at weekends and long school holidays. This was despite Mrs X saying before the Council issued the EHC Plan, she could not provide the care needed due to Y’s challenging behaviour, the needs of her other children and her employment.
• Failed to arrange transport to Y’s weekly placement.
• Failed to respond to her complaints about her concerns.
2. Mrs X considers Y needs a full-time residential placement and the care he needs is impacting onto her and the rest of the family.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. The Local Government Act 1974 also sets out what we cannot investigate. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. The scope of my investigation covers from March 2023 when the Council issued the EHC Plan to April 2024 when the Council responded to Ms X’s stage 2 complaint.
9. I have investigated Mrs X’s complaints about the social care provision put in place after the SEND Tribunal, the transport arrangements and complaint responses.
10. We cannot investigate Mrs X’s allegation the Council misled her and the Tribunal over the social care provision being made and Y’s placement at college. We also cannot look at the suitability of the college placement or disagreements over what care Mrs X agreed to provide for Y before the Council issued the EHC Plan.
11. This is because Mrs X has appealed and been to the SEND Tribunal. As paragraph four explains we cannot investigate where someone has appealed to a Tribunal. It was for Mrs X to establish what she was agreeing before going to the SEND Tribunal and asking for a consent order. Mrs X was legally represented at the Tribunal hearing and had an opportunity to discuss Y’s placement and terms at the SEND Tribunal if she was in any disagreement to the EHC Plan.

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How I considered this complaint

12. I spoke to Mrs X and considered the information she provided with her complaint. I considered information from the Council and the supporting documents it provided along with the relevant law and guidance.
13. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education health and care plan

14. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.

Social care advice for EHC Plans

15. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child or young person’s social care needs. Where the council decides it is necessary for support to be provided under section 2 of the Chronically Sick and Disabled Persons Act 1970 it must include this in Section H1 of the EHC Plan. Support provided by Early Help or under section 17 of the Children Act 1989 (child in need) should be included in Section H2 of the EHC Plan.
16. The Children Act 1989 (as amended by Children and Families Act 2014) places duties on councils to assess the needs of parent carers of disabled children on ‘the appearance of need’. The purpose of a parent carer needs assessment is to support parent carers to sustain their caring role and support parent carers to work or access education, training or leisure facilities.
17. If a parent disagrees with the social care support set out in the EHC Plan they can make a complaint to the council. Alternatively, if they are going to appeal to the Tribunal about other parts of the EHC Plan, they can ask the Tribunal to consider disagreement. If the tribunal makes a finding on the social care elements, it is non-binding.

Background to the complaint

18. Y has a severe learning disability, complex care needs and exhibits challenging behaviour. Y lived at home with Mrs X and his siblings. Y attended a special school, had 12 hours a week of enabling support and one overnight respite stay a week at a care provider. Y was due to move from his current educational setting in September 2023. The Council issued an EHC Plan in March 2023 proposing a new educational setting for Y. Mrs X appealed to the SEND Tribunal as she disagreed with some parts of the EHC Plan. Mrs X wanted Y to attend a residential setting as a weekly boarder. Mrs X asked the SEND Tribunal to make recommendations for Y’s social care needs.
19. The Council continued to look at setting for Y and referred him to a care company (company) for a ‘shared lives’ placement before the end of the academic year in July 2023. This would be a full time 52-week placement. The company found a possible carer who met with Mrs X and Y. The Council carried out a care act assessment on Y.
20. In July the carer declined the placement, so the Council looked at other options for Y including a residential placement at a specialist college (college). The Council agreed to a residential placement for Y at the college which Mrs X accepted.
21. The SEND Tribunal hearing about the EHC Plan took place in July 2023. The Tribunal decision notes the Council’s original proposal of a 7 day a week placement in ‘shared lives’ accommodation however this did not go ahead. And both parties now agreed Y would attend a residential placement at the college.
22. The SEND Tribunal noted the agreed proposal was to offer Y a residential placement at college during term time. This would be 38 weeks per year for four nights a week and five days per week, Monday to Friday, starting in September 2023 while the Council sourced alternative provision. The Tribunal noted before hearing both parties reached an agreement on the placement and asked it to issue a consent order.
23. The Tribunal noted that while most issues were agreed Mrs X disputed the Council’s proposals for the social care support Y needed during college holidays when he would live at home. The hearing considered the issues. The Tribunal recommended Y receive support each day and some overnight respite each weekend during the main college holidays. Mrs X said respite care was not necessary during the shorter half term holidays.
24. The SEND Tribunal issued a consent order for the appeal and the recommendations for social care were:
• Eight hours enabling support per day during college holidays when Y resides at home.
• During the Summer, Easter, and Christmas college holidays Y to have two nights respite care per week.
• Five nights per week residential placement at the college for 38 weeks of the year.
25. The Council issued a new final EHC Plan in July 2023 after the SEND Tribunal decision. The EHC Plan said the Council’s post 16 transport policy would be applied to a request for transport.
26. In August 2023 the company expanded the search area but could not source a respite placement for Y. The Council held discussions with the provider on extra respite and enabling support as required by the Tribunal decision. The Council also looked at the option for a shared lives placement for Y during the college holidays.
27. The Council wrote to Mrs X in September 2023 formally accepting the SEND Tribunal recommendations and agreeing to the social care support for Y. It advised Mrs X that unfortunately it had been unable to find a respite placement so still needed to confirm the care and support to wrap around the educational provision. The Council said it was continuing to look at options and it would reconsider a suitable shared lives placement for Y if one became available.
28. Y started at the college on a 3-year course, staying Monday to Thursday and going home Friday to Sunday during term time. The Council ended Y’s previous enabling support and respite provision on 31 October 2023. It noted from 1 November 2023 Y would receive eight hours support a day during longer school holidays plus two nights respite care a week during main holidays.
29. In September 2023 Mrs X complained to the Council she had always been seeking a 38-week residential provision for Y. Mrs X consider the Council was aware of this and she understood it had been agreed. Mrs X said she had not agreed to the four days a week offered by the Council. Mrs X alleged she and the Tribunal had been misled about residential placement being offered to Y.
30. Mrs X confirmed Y was settling in well at college but there was no transport in place to get him there. Mrs X said the college was a 90-minute drive away from their home with the Council expecting her to take Y each week. Mrs X complained there was no care support for the three nights a week Y was at home, and she could not provide Y with the care beyond school holidays.
31. The Council responded the care assessment in 2023 referred to Mrs X’s wish for a residential college placement for Y and he should attend the college as a weekly boarder. The Council explained a weekly boarder was someone who stayed away at college during the week but returned home at the weekends. The Council also noted a reference in a carers assessment Mrs X started that she wished Y to live independently away from home in an educational setting. But Mrs X had not completed the carer’s assessment despite the Council asking her to do so which may have captured more of her wishes. The Council said it did not ask the college to quote for a full-time placement and the SEND Tribunal understood what the Council was offering as shown in the recommendations it made. The Council said it would look at options to support Y at the weekends.
32. Mrs X remained unhappy and requested the residential placement she had referred to in the appeal. Mrs X did not consider Y could access the educational setting named in the EHC Plan unless he lived at the college seven days a week.
33. The Council acknowledged Mrs X’s complaint in October 2023. And while it intended to respond within 20 working days there may be delays in doing so due to pressure of demand. The Council apologised for any delay.
34. In November 2023 Mrs X met with a senior Council officer about her complaints and raised the issue of transport to college. Mrs X requested taxi transport for Y to and from college each week. The officer agreed to put transport in place immediately.
35. Mrs X made a further complaint to the Council in November 2023 repeating her concerns she had been misled about Y’s residential placement. And the Council it had not arranged social care provision to meets Y’s eligible needs at weekends. The Council acknowledged Mrs X’s complaint was still open and it would be responding fully to all points. The Council advised it had put transport in place for Y starting November 2023.
36. In December 2023 the Council held discussions with the company about a potential shared lives respite placement and carers availability. It agreed funding in principle for a placement offering respite in college holidays for Y and noted it may be possible for Y to move to the placement in the future. In January 2024 Mrs X asked the Council to respond to her complaints.
37. Mrs X visited the respite placement host in February 2024. The Council reached agreement for Y to try the placement during the Easter Holidays for 4 nights each week (Monday – Thursday).
38. The Council carried out a review of Y’s Care Act assessment in March 2024 including the replacement care for holidays. The assessment noted Y went to a care provider ‘a lot during the Christmas holidays in 2023 for a short break’.
39. Mrs X told the Council she was happy with proposals and would take Y to the respite provision. Mrs X asked the Council to provide the respite care every other weekend during term time too. The host agreed to do so.
40. Y’s respite placement started on 1 April 2024. His care and support plan noted he would stay at the respite placement four nights a week during college holidays and every other weekend during term time. Y went to the first respite stay in Easter holiday 2024 for 8-10 nights. The placement provider confirmed the placement was going well for Y.
41. In April 2024 the Council responded to Mrs X’s complaints in writing. The Council noted Mrs X’s meeting with the senior officer in November 2023 to discuss her complaints. It hoped providing taxi transport and confirmation it would carry out a full reassessment of Y for the 2024-25 academic year would help resolve her immediate concerns. The Council accepted the officer agreed to write to Mrs X with a full response to her complaints and apologised for the delay.
42. The Council explained the care act assessment in 2023, planning for Y at college and social care support contained references to Mrs X wanting Y to attend college as a weekly boarder. The options were a full-time placement at shared lives provision or weekly boarding at college. As the shared lives provision did not go ahead the Council looked at the weekly boarding option at college with Mrs X’s agreement. It understood the weekly boarding left an expectation Mrs X would continue to meet Y’s care and support needs at weekends with some respite/day care during school holidays. The Council considered in summer 2023 Mrs X was willing to continue that support. But it could now see she was expressing strong reservations and objections to doing so.
43. The Council believed during discussions in November 2023 with transport and some respite/day care during school holidays Mrs X agreed to continue as the main carer for Y during weekend/holidays. And it agreed to do a new assessment early in time to make alternative arrangements for Y for the next academic year.
44. Mrs X disputes the Council’s view she agreed to care for Y during the weekends and school holidays. Mrs X says she has always told the Council this was not possible. In May 2024 Mrs X confirmed to the Council that Y’s respite placement was going well.

My assessment

45. The Council should have ensured the provision named in Y’s EHC Plan after the SEND Tribunal hearing was in place from the start of Y’s placement at college in September 2023 including the social care provision. The documents provided show the Council was actively making arrangements from July 2023 onwards but could not source a placement for Y on the basis requested. The Council continued to hold discussions with providers on additional respite and enabling support according to the Tribunal decision. It is unfortunate the Council could not source the respite provision due to lack of suitable providers however I consider this amounts to service failure by the Council and is therefore fault.
46. Having found fault by the Council I need to establish the injustice caused to Mrs X and Y as a result. The documents provided show Y was receiving enabling support and respite provision which ended 31 October 2023. From 1 November 2023 Y was to receive eight hours support a day during the longer school holidays plus two nights respite care a week during main holiday.
47. The Council was unable to put this in place until April 2024 for the Easter holiday. Ms X told the Tribunal she could manage Y during the shorter holidays such as half terms so the first main holiday the family were without the provision was Christmas 2023. Y’s Care Act assessment says he went to a care provider ‘a lot during the Christmas holiday for a short break’. The amount was not specified in the assessment, but it is clear Y did receive some respite although not what was agreed in EHC Plan. I consider therefore the fact there was some provision reduces the injustice caused to Mrs X and Y by the Council’s failure to have the specified social care provision in place for Christmas 2023. However, Mrs X and Y have still suffered some injustice as the Council had been unable to provide the specified provision listed in Y’s EHC plan. Because of this I recommend the Council apologises to Mrs X and Y and pays Ms X £300 as a symbolic payment in recognition of the loss of social care provision and the impact onto Ms X, Y, and the family as a result.
48. The Council has subsequently carried out a care act assessment on Y in 2024 and agreed to provide weekend respite and support during term time for Mrs X and Y.
49. The EHC Plan specifically refers to the need for Ms X to make an application for Post 16 transport in accordance with the Council’s policy. There is no evidence Ms X made such an application for Y. Once Ms X raised the issue of transport the Council accepted a duty to arrange transport. While I appreciate Ms X had some difficulties in taking Y to college until November 2023, I do not consider it was due to any fault by the Council. This is because the onus was on Ms X to apply for transport as the EHC Plan required.
50. The Council accepts it delayed responding in writing to Ms X’s complaint made in September 2023 until April 2024. The delay is fault by the Council as it advised it would respond in writing within 20 working days. The Council did say in October 2023 there might be some delay in responding but it took six months from then to send the written response. The fault will have caused some frustration for Ms X. However, the evidence provided shows the Council was actively working to address the issues Ms X had raised. In addition, Ms X had received an interim written response and met with a senior officer about her concerns. The Council has apologised to Ms X for the delay in responding in writing. I consider is a suitable remedy for the injustice caused through frustration so do not recommend any further remedy.

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Agreed action

51. To remedy the injustice caused to Mrs X and Y I have identified in paragraph 47 the Council will, within one month of my final decision, apologise in writing to Mrs X and Y and make a payment of £300 to Mrs X as a symbolic payment in recognition of the loss of social care provision in December 2023 and impact onto Ms X, Y, and the family.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation. There is evidence of fault by the Council as it delayed in ensuring the social provision specified for Y in his EHC plan was in place by September 2023. I have recommended a suitable remedy for the injustice caused in this case.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman