Summary: Ms Y complained the Council failed to provide appropriate support for her and her son, Z, and wrongly threatened her with child protection proceedings. Ms Y also complained the Council failed to provide Z with the support in his Educational, Health and Care Plan. We have found fault by the Council in its delay considering Ms Y’s requests for support for Z, and failure to consider whether it should assess Ms Y’s needs for support, causing injustice. The Council has agreed to remedy this by apologising to Ms Y. We have not found fault by the Council with regard to its contact with Ms Y about child protection proceedings, or the provision of Z’s educational support.

The complaint

1. The complainant, who I am calling Ms Y, complains about the Council’s response to her requests for support with her son, Z’s behavioural issues, caused by his health conditions. Ms Y says the Council failed to provide her and Z with appropriate support and wrongly threatened her with child protection proceedings.
2. Ms Y also complains the Council failed to provide Z with the support in his Educational, Health and Care Plan - an Applied Behaviour Analysis (ABA) tutor- from September 2021 to February 2022.
3. Ms Y wants the Council to provide Z with provision that meets his educational and behavioural needs and pay compensation for the disruption to her employment its failures caused. She wants the Council’s social workers to undergo further training.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

8. I spoke to Ms Y, made enquiries of the Council and read the information Ms Y and the Council provided about the complaint
9. I invited Ms Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education, Health and Care Plan (EHC Plan)

10. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
11. Councils have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)

The Children Act 1989 and statutory guidance

12. Section 17(1) of the Children Act 1989 (the Act) says local authorities (councils) have a duty to safeguard and promote the welfare of children within their area who are in need, and promote their upbringing by their families, by providing a range and level of services appropriate to those children’s needs.
13. These duties are set out in the statutory guidance ‘Working Together to Safeguard Children’. When a council receives a referral about a child it must decide what type of response is needed. This will include determining whether:

• The child needs immediate protection and urgent action is required.
• The child is in need and should be assessed under section 17 of the Act.
• Any services are required by the child and the family.
• No further action is required.

14. Where a council considers a referral raises a concern a child may be at risk of ‘significant harm’, it must make enquiries to establish the child’s situation and whether protective action is required. Section 47 of the Act says “significant harm” can be due to physical, sexual, emotional abuse or neglect.
15. If a council considers the threshold of significant harm may be met, it should arrange a strategy meeting with the police to decide any immediate safeguarding actions and child protection enquiries. These enquiries may involve all agencies who work with a child and the family. Once the enquires are complete the Council must then decide what action to take. This could include a decision to place a child into its care or onto a child protection plan.

Parent carers’ needs assessments

16. The Act also provides (at Section 17ZD) a council must assess whether a parent carer for whose disabled child it provides services under Section 17 has needs for support and if so, what those needs are, if:

• they appear to have a need for support; or
• have asked for an assessment.

Public Law Outline Process

17. The Public Law Outline (PLO) process takes place when a local authority is concerned about a child’s wellbeing and may consider making an application to the Court unless positive steps are taken to address their concerns.
18. If a council wishes to start the PLO process it will first provide parents with a letter (a PLO letter) outlining its concerns and proposed action to address the concerns.
19. If an agreement about the action needed is implemented, a council may then decide whether the Public Law Outline process needs to continue.

What happened

20. I have set out a summary of the key events below. It is not meant to show everything that happened.

Background

21. I am looking at what happened from September 2020 but have set out some background by way of context.
22. Z has Special Educational Needs (SEN). He has a diagnosis of Autistic Spectrum Condition (ASC) and Attention Deficit Hyperactivity Disorder (ADHD) and has an EHC Plan.
23. In October 2019, Ms Y contacted the Council’s Children’s Services with concerns about Z’s behaviour. Ms Y said Z was becoming increasingly aggressive towards her and there were some challenges with his behaviour at school.
24. Further concerns were reported, including incidents of Z absconding from home. Records show Ms Y told the Council and the police on a number of occasions she couldn’t keep Z safe and wanted him placed in foster care. Following child protection enquiries, Z was placed on a child protection plan in February 2020.

Z’s SEN provision from September 2020 to July 2021

25. As at September 2020, Z attended school A, the mainstream primary school named in his EHC Plan. Z’s plan included the provision of 32.5 hours of 1:1 support at all times at school from a suitably qualified Applied Behaviour Analysis (ABA) support worker, with monthly supervision by a Board Certified Behaviour Analyst (BCBA) consultant.
26. In November 2020 Ms Y told the Council’s SEN team she didn’t want Z to stay at school A.
27. Z was then excluded from school A following issues with his behaviour. Ms Y decided he should not return to school A at the end of the exclusion period. It was agreed school A would provide him with educational provision remotely until a new placement was found.
28. The Council consulted on a number of other possible placements. In December Ms Y told the Council she would like it to consider school B, another mainstream primary school, as a placement.
29. The Council issued Z’s amended EHC Plan. This included provision for Z of 32.5 hours a week dedicated ABA support throughout the school day, with a BCBA consultant providing half -termly visits to the school and supervision of the programme. His placement was named as school B.
30. Z started at school B in June 2021. The ABA support set out in his EHC Plan was was put in place.

Z’s SEN provision from September 2021 to December 2021

31. Z was diagnosed as having ADHD.
32. Z started back at school B. At the end of September his ABA support provider told the Council it would stop working with Z at the end of the term. At the same time, Ms Y told the Council she had withdrawn consent for the provider to continue to work with Z.
33. Arrangements were made by the school to put an additional teaching assistant in place to support Z until the Council could source an alternative ABA provider.
34. The Council’s records show it started looking for an alternative ABA provider immediately. Ms Y suggested a tutor. But a supervisor for the tutor was also required as set out in the EHC Plan. The Council approached an agency who said although they could provide supervision, it would take time to source a tutor.
35. The Council also contacted the tutor suggested by Ms Y, and a proposed supervisor. It had discussions about contract terms, the date for preliminary observations and a personal budget account for Ms Y so she could employ the tutor directly.
36. At the end of November, arrangements were made for an ABA tutor, engaged by Ms Y, financed by personal budget payments and supervised by the agency to provide Z’s ABA support at school.

Ms Y’s complaint about Z’s ABA support

37. In December 2021 Ms Y complained the Council failed to provide Z with the ABA support in his EHC Plan from September 2021 and did not take action to find a replacement quickly enough. In its final response the Council said:

• It accepted there was a gap in the provision from 2 October, when Ms Y withdrew her consent, until 29 November when the new ABA tutor started. This included the half term holiday from 25 to 29 October;
• It had worked with Ms Y to find another suitable tutor; and
• Until the replacement tutor was arranged, a teaching assistant, with an ABA qualification, supported Z with help from other teaching assistants.

Children’s Services’ involvement from September 2020 to December 2020

38. Z remained on the child protection plan, put in place in February 2020. Z’s social worker visited Ms Y in early September. The Council’s records note Ms Y said she did not need the parenting classes set out in the child protection plan and the work she was doing with Z’s ABA tutor was more helpful. Ms Y did not ask for any additional support.
39. At a case review conference in October, it was noted Ms Y was engaging with Z’s social worker and said she now had a relationship of trust with school A. The panel unanimously agreed to remove Z from the child protection plan and place him on a child in need plan.
40. On a home visit by Z’s social worker in November, Ms Y raised the issues she had with school A. She had decided he would no longer attend the school and she would support him at home until a new placement was arranged. Ms Y said Z could stay with his grandparents on the days she was working. She asked if Z could have a session with an ABA tutor once a week until the new placement was arranged.
41. There was then a report of an incident when Z’s grandparents had not been prepared to look after him on a day Ms Y was due to be at work. Ms Y told the social worker she wanted Z placed in a respite care placement. She said could not look after Z while he was not attending school. The social worker visited Ms Y at home, but Ms Y was unwilling to allow her inside.
42. The Council arranged funding for Z’s care (with a childminder) while Ms Y was at work and offered two afternoon sessions of ABA support.
43. In December 2020, the social worker noted following a home visit, the situation at home was stable. Ms Y had confirmed Z was looked after by his grandparents when she was working.

January 2021 to August 2021

44. A social worker continued to make home visits from January 2021.
45. In May the police made a referral about Z to Children’s Services. Ms Y reported Z had threatened her, she had taken him to his grandparents where he had been aggressive. She told the police she did not want Z back home. He was currently in police protection.
46. Children’s Services contacted Ms Y. Following discussions with her, it was agreed Z would return to his grandparents. The next day the police were told by Z’s grandparents they could not care for him. Children’s Services contacted Ms Y who agreed Z could return to her.
47. A social worker visited Ms Y and Z in May and June. Ms Y said she had not been given the support to which she was entitled under the Children’s Act. She said the Council had an obligation to provide her with respite. She asked the Council for two weeks of overnight respite care. She also asked the Council to provide Z with ABA support at home (not just at school).
48. Ms Y made further requests for overnight respite care and ABA provision during the school holidays in July and August.
49. In August the Council considered Ms Y’s request for 10 nights of overnight respite care for Z. The panel rejected the request on the basis it was too significant a change for Z to be away from Ms Y. It later considered whether another form of support (day activities) would be appropriate and put this in place.

September 2021 to December 2021

50. In September 2021 school B contacted Children’s Services about Z. Ms Y had said she could not have him back home that night as she was frightened of him. Children’s Services arranged for Z to stay with his grandparents, who indicated they could not care for Z beyond a couple for nights. Ms Y said she was not confident his grandparents had the capacity to care for Z.
51. The Council searched for, but were unable to find, a suitable foster placement for Z. Ms Y told the Council Z could return home.
52. On 30 September at a professionals’ meeting held by Children’s Services it was unanimously decided Z was considered to be at risk of significant harm and his case should proceed to an Initial Child Protection Conference (ICPC).
53. In October, the ICPC made a unanimous decision to place Z on a child protection plan under the category of emotional abuse. The plan included Ms Y being more open to working with professionals to support Z.
54. Ms Y did not engage with Children’s Services. The Council wrote to Ms Y setting out its concerns about Z’s care and the possibility of court action if these were not resolved.
55. At a meeting with Children’s Services in November, Ms Y told the Council it did not understand her or Z’s need for ABA provision at home and respite care. The Council later agreed to explore these requests.
56. The Council held a PLO meeting in November and sent Ms Y a PLO letter setting out its concerns about Z and its proposals to address these, which included Ms Y:

• resuming her engagement with Children’s Services and the child protection plan;
• engaging with any further SEN processes to enable any alternative provision to be identified for Z; and
• discussing with Z’s social worker which types of support she thought would be of benefit to Z and her family.

57. At a Public Law Outline Meeting on 19 November, Z’s social worker reported back on visits and discussions with Ms Y and that Ms Y had agreed the proposals set out in the PLO letter.

Ms Y’s complaint about Children’s Services

58. In September 2021 Ms Y complained about the conduct of a manager. She said the Council had failed to address her requests for support or her statutory rights as a carer, had arranged a placement for Z with family which was not safe or suitable and threatened her with child protection proceedings.
59. Ms Y was not satisfied with the Council’s response to her complaint. She said:

• She did not accept it was a unanimous decision to put Z on a child protection plan. She believed it was the manager’s decision to escalate this; and
• The Council had not substantiated its grounds for the PLO process. It had constantly escalated and de-escalated threats about this:

60. In its final response the Council said:

• A decision to place a child on a child protection plan had to be taken by a multi-agency conference. It could not be made by a single manager. The ICPC had made a unanimous decision in October 2021 to place Z on a child protection plan;
• A decision to start the Public Law Outline process could not made by a single manager. It must be made at a Legal Planning Meeting; and
• There was no evidence to substantiate her complaint a manager told her a request for section 17 respite care would be refused unless she accepted she could not meet Z’s needs.

61. In response to our enquiries, the Council told us:

• It accepts there was a delay in considering Ms Y’s request in May 2021 for ABA provision and respite care for Z. Due to an oversight this request was not considered until August 2021. It would like to apologise to Ms Y for this delay.
• Its view is ABA support at home does not fall within the remit of a social care need.
• It refused the request for overnight respite care but considered whether other support for Z might be appropriate. It has provided Z with day activities at a football club, which is ongoing. The Council considers this provision for Z meets his assessed eligible social care need.
• It did not consider arranging a carers’ assessment for Ms Y in the period from May 2021. This is because she asked for support with Z’s needs, not her own needs.

My findings – was there fault by the Council causing injustice?

Complaint (a) Z’s SEN support

62. Ms Y complained the Council failed to provide Z’s ABA support set out in his EHC Plan from September 2021 to February 2022.
63. I understand the ABA provider stopped working with Z from 2 October 2021, and new ABA support was put in place for Z from 29 November 2021.
64. The ABA provision the Council had arranged for Z was terminated with immediate effect for reasons outside of its control. In my view, the Council used its best endeavours to find a suitable replacement provider as quickly as possible. It worked with Ms Y, followed up her suggestions about a tutor and request for a personal budget, to put her preferred arrangement in place. In the meantime, temporary ABA support was provided by a teaching assistant at the school with an ABA qualification.
65. I do not consider this gap in the full ABA support during this period was fault by the Council.

Complaint (b) the Council failed to provide appropriate Children’s Services’ support for Z

66. As explained in paragraph 5 above, I am not able to question the Council’s decisions about Z’s support by Children’s Services. I am only able to consider the way in which it made these decisions.
67. In my view, the information I have seen shows the Council considered Ms Y’s request for respite care on days she was working, and ABA provision for Z in November 2020, and put this support in place for him.
68. The information also shows how the Council considered Ms Y’s requests in 2021 for respite care and ABA provision at home for Z and the reasons it declined the requests. It also considered whether another form of support (day activities) would be appropriate and put this in place.
69. The Council has accepted there was a delay initially in considering Ms Y’s requests. It put this right when it considered the requests in August 2021 and has offered to apologise to Ms Y for the inconvenience this delay caused. I do not consider any further action by the Council is required.
70. Save for this delay, my view is the Council properly considered Ms Y’s requests for support for Z from Children’s Services. I do not propose finding any further fault by the Council in this respect.

Complaint (c) Council’s response to Ms Y’s request for support for herself

71. The Council says Ms Y asked for support for Z’s needs but did not request support for own needs.
72. I have reviewed the Council’s records of its contact with Ms Y, in May 2021, following the incident in which she said Z had threatened her and she did not want him back home. This show Ms Y said, in her discussions with Z’s social worker, the Council had an obligation to provide her with respite care and asked it to provide this for her.
73. In my view the Council should have considered, at this stage, whether it had a duty under the Act to assess Ms Y’s needs for support. It says it did not do this, and my view is this failure to do so was fault.
74. I cannot say what would have happened had the Council considered in May 2021 whether it should assess Ms Y’s needs or what the outcome of any assessment would have been. I note Ms Y’s request for respite care was considered in any event. But in my view, because of this failure, Ms Y lost the opportunity at that stage to have an assessment of her support needs considered.

Complaint (d) the Council wrongly threatened Ms Y with child protection proceedings

75. I am also not able to question the Council’s decisions to put in place a child protection plan or to initiate the PLO process. I can only consider whether it followed the proper procedure when making these decisions.
76. The Council’s records confirm that in October 2021 the ICPC made a unanimous decision to place Z on a child protection plan under the category of emotional abuse. My view is the Council properly followed the statutory procedure under the Act when it made this decision.
77. In my view, the information also shows the Council followed the proper procedure before deciding to start the PLO process. It set out its concerns in a PLO letter. It considered Ms Y’s response to its concerns and its proposals for addressing these, following which it decided there was no need to initiate child protection proceedings at that time.
78. I do not consider there was fault in the way the Council decided to initiate the PLO process.

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Agreed action

79. To remedy the injustice caused by the above faults, and, within four weeks from the date of our final decision, the Council has agreed to apologise to Ms Y for the upset and inconvenience caused by its:

• delay in considering her request in May 2021 for support for Z; and
• failure to consider whether it should assess her needs for support.

80. The Council should provide us with evidence it has completed the above actions.

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Final decision

81. I have found fault by the Council in its delay in considering Ms Y’s requests for support for Z in May 2021 and its failure to consider whether it should assess her needs for support, causing injustice. (part of complaint (b) and complaint (c)). I have not found fault by the Council with regard to the other parts of the complaint ((a), the rest of (b), and (d)). I have completed my investigation on the basis the above actions are a suitable way of remedying the injustice.

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Investigator's decision on behalf of the Ombudsman