Decision : Not upheld
Decision date : 04 May 2018
The Ombudsman's final decision:
Summary: There is no evidence of fault that has caused injustice in this complaint about the provision of services to Ms X’s son by Bedford Borough Council’s children’s services team. The Council issued an amended Education, Health and Social Care Plan following an annual review in 2017 that was very slightly delayed but this did not cause any significant injustice and does not justify a remedy.
- The complainant, whom I shall refer to as Ms X, says that the Council failed to deal properly with matters relating to her son, Y’s, special educational needs assessment and his social care needs. Specifically, she says it:
- delayed in completing its assessment of his special educational needs (EHCP assessment);
- failed to make proper arrangements to meet his needs related to speech and language, occupational therapy and school placement in the EHCP;
- refused to accommodate Y under section 20 of the Children Act 1989 when she asked for this and only agreed after she initiated legal action;
- avoidably delayed accommodating Y between February and May 2017;
- failed to make proper arrangements for Y to have contact with his family since he has been accommodated under section 20;
- unreasonably arranged a child protection case conference when she asked for help managing Y;
- provided inaccurate information in the social work report to the child protection case conference; and
- wrongly refused to consider her complaint about f) and g).
What I have investigated
- I am investigating parts a), e), f), g) and h) of the complaint. The final section of this statement explains why I have not investigated the rest of the complaint.
How I considered this complaint
- I discussed the complaint with Ms X and considered the written information she provided with her complaint. I made written enquiries of the Council. I took account of all the information before reaching a draft decision on the complaint.
- I gave the Council and Ms X the opportunity to comment on my draft decision. I took account of the Council’s response and additional comments before reaching a final decision. Ms X did not provide any comments.
What I found
- A child with special educational needs may have an Education, Health and Social Care Plan (EHCP). The plan sets out the child’s needs and what arrangements should be made to meet them. The Ombudsman cannot change an EHCP; only the SEN Tribunal can do that.
- The Council is responsible for making sure that all the arrangements specified in the plan are put in place. The Ombudsman cannot look at complaints about what is in the plan but can look at other matters, such as where support set out in a plan has not been provided or where there have been delays in the process.
- The legislation says that EHCPs must be reviewed by the council every 12 months at least. The council’s decision following the review meeting must be provided to the parents within four weeks of the review meeting. Where a council decides to amend an existing plan (rather than completing a re-assessment) following a review, it must send the child’s parents a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments. If the council then decides to proceed with the amendments (following receipt of any comments) it must issue the amended EHC plan as quickly as possible and within eight weeks of the original amendment notice.
- If a council provides accommodation to a child under section 20 of the Children Act 1989 it does so with the agreement of the child’s parents. The parents retain sole parental responsibility for their child and so still make decisions relating to their child.
- The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
- There is statutory guidance ‘Getting the best from Complaints’ which provides guidance on the implementation of this three stage procedure. At paragraph 2.5.2 it states “Regulation 8 provides the local authority with discretion in deciding whether to consider complaints where to do so would prejudice any of the following concurrent investigations:
· Court proceedings;
· Disciplinary proceedings; or
· Criminal proceedings.
- If a Council considers information it receives about a child may indicate the child is “suffering or likely to suffer significant harm” it will arrange a strategy meeting or discussion with the police to decide how to proceed. If the meeting decides further enquiries are needed and these continue to indicate risk the Council may decide to arrange a child protection case conference. A child protection case conference convenes professionals involved with a family and decides whether a child protection plan is necessary to ensure the child’s wellbeing and safety. A social worker will write a report which s/he presents in the conference and which s/he should share the report with the parents before the conference meeting.
- We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’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)
- In 2016 Ms X and her husband approached the Council for more help after finding it increasingly difficult to look after their teenage son who is diagnosed with multiple disabilities and who started to display increasingly aggressive and sexualised behaviour which began to impinge on the safety of family members.
- In December 2016 the council arranged an initial child protection case conference. The report following the conference confirms that the council did not make Y or his sibling subject to a child protection plan but confirmed that professionals were becoming more concerned as a result of Y’s increasingly sexualised and physically aggressive behaviour and considered the existing care package was no longer meeting the needs of the family. A plan detailing additional support was agreed. This included a review of the EHCP and a plan for support over the Christmas period to include thinking about respite care and day care.
- In March 2017 Ms X initiated judicial review (JR) proceedings against the Council after it failed to accommodate Y.
- Whilst seeking a permanent placement for Y, the Council provided a high level of care for Y in a children’s care home between March and May 2017. In addition it provided agency support whilst Y was at home.
- The Council accommodated Y under section 20 and placed him in a 52 week a year residential placement in May 2017. The court dismissed the judicial review application in May.
- Y attended a separate independent special needs school. Shortly after he was accommodated the Council issued Y’s amended EHCP.
- In June 2017 Ms X appealed to the SEN tribunal regarding Y’s educational placement and other matters related to the EHCP. Ms X wanted a combined 52 week a year school and residential placement for him. In November the Tribunal issued its decision, making directions regarding speech and language therapy and occupational therapy and also that Y should attend the residential school identified by Ms X.
Delay in completing the EHCP assessment
- The statement transfer process for Y started on 9 November 2015 and was completed when the final EHCP was issued on 12 February 2016.
- Ms X complains that the annual review that took place in February 2017 did not result in an amended plan until May 2017.
- The Council says the decision to amend the EHCP was reached in the annual review meeting. Where a school takes the lead role in the annual review (which is usual where a child is in school and was the case with Y’s review) the school is required to send a note of the meeting to the Council within two weeks of the meeting. Y’s school did not do this. The Council says the school’s delay in doing so was the result of staffing and sickness problems in the school. And this resulted in the necessary notes not being issued to the Council until early May. The Council is required to reach a decision on whether or not it intends amending the plan having received the notes within 4 weeks. In this case it issued an amended plan by 11 May and issued the final amended EHCP on 23 May.
Failed to make proper arrangements for contact since accommodated
- The Council says that Ms X and her husband sought legal advice and so were aware that they retained full parental responsibility for Y after he was accommodated under section 20. The Council considers that Ms X’s legal advisors would have told her that, as Y was accommodated under Section 20 on a voluntary basis, she could see and take Y out of the placement whenever she wished. The Council says that at the beginning of being placed, the parents did not want to consider overnight contact. They chose to have two weekly contact visits with Y on a Saturday and two Facetime/Skype contacts twice a week. When Y was first accommodated, staff supported contact between Y and his family in the community as this was what they requested.
- The Council says that later Ms X and her husband decided they wanted to manage the contact. Consequently the Council says they have taken Y out of school to go to an adventure park in October 2017 and arrangements were also made for him to go home for Christmas in 2017.
- The relevant looked after child documents and forms the Council completed refer to the agreed contact arrangements. The “Keep Safe” form states that Y would be seeing his parents for two hours every other Saturday afternoon and confirms this arrangement was the parents’ choice. The form states “Parents know they can see Y when they want providing this does not affect any arrangements (the residential unit) may have planned for Y and his peers”. The form also confirms Facetime contact twice weekly and refers to contact arrangements for Y’s paternal grandparents. This arrangement is confirmed in the Placement Plan. The contact arrangements are also referred to in the Independent Reviewing Officer’s (IRO) report. The IRO’s report also confirms that the section 20 arrangement is voluntary, made with the agreement of Ms X and her husband and that they therefore continue to make choices and decisions for Y.
Unreasonably arranged child protection case conference
- The Council says the reason for organising the child protection case conference was concerns that Ms X had photographed and videoed Y attacking his brother and of Y placing himself in danger instead of intervening to prevent or protect Y or his brother.
- The Council says that a multi-agency strategy meeting was held and that it decided an initial child protection conference should be arranged. The Council agrees however that the chair of the initial children protection case conference felt the situation could be managed as a child in need case. It also states that some professionals disagreed with this.
Handling of complaint and provision of inaccurate information in the social work report to the case conference
- In January 2017 Ms X complained to the Council about its decision to arrange a child protection case conference after she had approached the Council for help. Connected to this she complained about other matters related to the case conference including that the social worker had not discussed the report to the conference with her and that she did not receive the relevant reports in advance of the hearing.
- The Council disagrees that it refused Ms X’s complaint. It says it was in the middle of addressing Ms X’s complaint at stage one of the statutory children’s social care complaints procedure when Ms X submitted her judicial review application. The Council says it wrote to Ms X to tell her it could not process her complaint under the statutory process while there was a legal process ongoing. The Council emailed to tell her this and invited her to resubmit her complaint once the legal process was concluded.
- Ms X replied to the email the following day saying she would resubmit her complaint once the legal process had concluded. The Council says Ms X did not resubmit her complaint after the conclusion of the judicial review so it did not continue its consideration.
- The Council says that despite not proceeding under the statutory process, the issues Ms X raised were considered and most of the actions agreed at the complaint meeting of 21 February (before the JR proceedings were instigated) were undertaken. These included:
- an apology to Ms X and her husband “for making the parents feel like their parenting was inadequate and for any issues upheld”;
- a new social worker to be allocated to work with the family;
- a new carers assessment to be completed;
- a reminder to staff that they must share case conference reports with parents at least three days before the case conference; and
- an apology that “you were made to feel like the service being offered was not assisting you”.
Was the Council at fault and did this cause injustice?
- The Council states the assessment for the EHCP was completed within the 20 week timescale allowed to complete the process from beginning to end. I agree there is no evidence the Council delayed in issuing the EHCP.
- The Council says that the school delayed in issuing the notes of the annual review meeting in February. If the process had been followed according to the guidance the school should have issued these notes within two weeks (ie by 9 March) after which the Council should have reached a decision to amend or not amend the plan within four weeks of the review date (ie by 23 March). The process states that the Council should then have issued the proposed amendments to Ms X and given her 15 working days to comment. Following receipt of comments it should then have issued the final amended EHCP as quickly as possible and within eight weeks of the notification of the amendments (ie in this case by 18 May). It is clear this process was not followed. However, the Council did issue the final amended plan on 23 May so shortcomings in this process did not result in any significant delay. The delay within the process was caused by the school failing to issue the notes for several weeks. Once it received the notes the Council acted promptly however and, whilst it did not then strictly follow the process detailed in the guidance, it made sure that it issued the proposed amendments and final amended version quickly and tried to ensure time for comments on the proposals before issuing the final version. I understand this consultation process was curtailed due to legal intervention from Ms X’s lawyers. The Council says it chased the school for the notes and I accept this. The Council points out that Ms X exercised her right to challenge the content of the EHCP by applying to the SEN Tribunal and did so very shortly after the final amended EHCP was issued. In theory Ms X could have taken her case to the Tribunal a week earlier if the final amended EHCP had been issued without any delay but again I do not consider this constitutes injustice that justifies a remedy from this office.
- There is no evidence the Council failed to make arrangements for Y to have contact with his family after he became accommodated in May 2017. The relevant documents clearly record that arrangements for contact were made in line with Ms X’s and her husband’s wishes in this regard.
- The Council took action to deal with a number of the concerns Ms X raised about the child protection case conference including ensuring reports would be shown to families with proper notice and apologising that Ms X did not feel the system was helping the family. It is for the Council to decide whether or not it considers a child protection case conference is justified and the Council states that a multi-agency strategy meeting agreed that a case conference should be arranged in this case. This was a decision the Council was entitled to make and it is not for me to consider the merits of a decision that was reached using the proper processes in the correct way.
- The Council agreed it would take action to note Ms X ‘s disagreements about the accuracy of the report for the initial case conference and place it with the report on its records. It did not do this promptly but has already taken action to do this now and has apologised for its failure to do this promptly when it agreed to in March 2017. No further remedy is necessary.
- The Council had grounds to put the complaint on hold when Ms X initiated the judicial review proceedings. I accept the judicial review proceedings, though related to the request to accommodate Y, were linked to Ms X’s complaint to the Council. In any case the Council had already agreed to take action to deal with Ms X’s complaint as part of its stage 1 consideration of the matter in February 2017 and it undertook much of this action at the time. In addition it invited her to contact the Council after the conclusion of the judicial review proceedings if she still wanted the matter pursued then and Ms X did not do so. There are no grounds therefore for me to conclude that the Council refused or failed to deal properly with Ms X’s complaint.
- There is no fault in relation to Ms X’s complaints about the actions of the children’s services team. The Council did not take the action it agreed it would regarding the accuracy of the case conference report but has already apologised and taken action to put this right now. The issuing of the final amended EHCP in May was slightly delayed following a delay by the school in issuing the notes of the annual review meeting and the process was not consequently followed entirely in accordance with the statutory guidance. I do not consider the very slight delay in issuing the final amended plan caused any significant injustice and it does not justify a remedy.
Parts of the complaint that I did not investigate
- I am not investigating parts b), c) and d) of the complaint as they have, respectively, been the subject of applications by Ms X to court (between March and May 2017) and the SEN Tribunal and so we cannot consider these.
Investigator's decision on behalf of the Ombudsman