Summary: Mrs X complains that the Council failed to deal properly with her requests for support for her disabled child, including respite care. She also complains that it failed to carry out a social care assessment for her child as part of his transfer to an Education Health and Care Plan. The Ombudsman finds that the Council was at fault in the way it dealt with both these matters. It created unnecessary barriers to access to services for a disabled child. The Council has agreed a suitable remedy, including payments to Mrs X, an assessment of her child’s needs and a review of procedures. Mrs X may come back to the Ombudsman after the assessment to consider whether any further remedy is appropriate.

The complaint

1. Mrs X complains that the Council has:
1. failed to deal properly with her requests for support with respite care for her son since June 2017, including closing his case without her knowledge; and
2. failed to carry out a social care assessment for her son as part of his transfer to an Education Health and Care Plan.
2. As a result she says she and her son have been left without the respite care they need.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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, sections 26(1), 26A(1) and 34(3), as amended)
4. 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. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

7. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and Council policy and procedures. I shared my draft decision with the Council and the complainant and considered their responses.
8. I have investigated the complaint in detail from May 2017. I include earlier events as background information.
9. 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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What I found

10. Local authorities have a duty to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child's needs. (Children Act 1989, section 17). A disabled child is a child in need.
11. Local authorities carry out assessments of the needs of the child to determine which services to provide and what action to take. They have a positive duty to take reasonable steps to identify children in need within their area and, when identified, to undertake an assessment of those needs.
12. If a parent carer of a child in need requests it, the local authority must assess whether the parent has support needs and, if so, what those needs are. This is known as a parent carer assessment. The local authority may combine the assessment with an assessment of the needs of the disabled child. The assessment must consider:
• whether the parent carer has needs for support in relation to the care which he or she provides or intends to provide;
• whether the disabled child cared for has needs for support;
• whether those needs could be satisfied (wholly or partly) by services which the authority may provide under section 17; and
• whether or not to provide those services. (Children Act 1989, sections 17ZA–17ZF)
13. As part of their services to families, councils must offer carers of disabled children short breaks from caring to help them look after their children at home. (Children Act 1989, Schedule 2, paragraph 6)
14. The Council’s system for deciding who is eligible for access to short breaks is as follows:
• the child or young person is disabled “by which we mean being registered on iCount or meeting the criteria for registration”; and
• there is an identified need that short breaks will help to meet; and
• the identified need cannot be met through universal or general services.
15. To qualify for the iCount register the child or young person must:
• be aged 18 or younger
• live in the Council’s area
• have a permanent and substantial disability.
16. The Council assesses eligibility against a set of categories of difficulties which affect daily living including ‘communication’,’ health’, ‘continence’, ‘learning difficulty’, and ‘behaviour and social integration’. There are four levels of difficulty under each category: ’mild’, ‘moderate’, ‘severe’ and ‘profound’. To qualify, the child’s needs must either:
• fall into a number of categories at the ‘mild’ or ‘moderate level’; or
• fall into any one category at the ‘severe’ or ‘profound’ level.
17. Once a child meets the iCount criteria they are eligible for services from the Disabled Children’s Service. A professional who knows the child completes an Early Help Assessment Tool which is then considered by the iCount Panel to decide what services the Council should provide, including short breaks.

Education, Health and Care assessments

18. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This 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 education, or name a different school. Only the Tribunal can do this.
     
19. Parents and young people can appeal to the Tribunal (the Special Education Needs and Disability (SEND) Tribunal) about the provision in the social care section of the EHC Plan, but only where there is also a dispute about the special education provision as well. The Tribunal’s findings are not binding.
     
20. Councils had to transfer all pupils with statements of special educational needs onto EHC Plans by April 2018. The process starts with a transfer review meeting. As part of the process the council must carry out an EHC assessment. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans.
21. Councils must seek advice and information on the needs of the child or young person, and what provision may be required to meet the needs, from relevant professionals. This includes:
• the child’s education placement
• medical advice and information from health care professionals involved with the child
• psychological advice and information from an Educational Psychologist
• social care advice and information
• advice and information from any person requested by the parent or young person, where the council considers it reasonable
• any other advice and information the council considers appropriate for a satisfactory assessment.
22. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
23. Councils must complete the EHC assessment and issue a final EHC Plan within 18 weeks of the transfer review meeting. Before isusing a final Plan councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan.

Children’s social care complaints procedure

24. 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. The Ombudsman may use his discretion to accept a complaint earlier in the process.
25. The Government has provided guidance for local authorities, Getting the Best from Complaints, on the operation of the complaints procedure. Where a complainant is not satisfied with the outcome of the complaint at stage 1 and makes asks for the complaint to be considered at stage 2, the council must consider the representations in line with the statutory process. Stage 2 begins when the complainant asks for it or where the council and complainant agree that stage 1 is not appropriate.

Background

26. Mrs X has four children, including Y, who is now aged 17. Y has a long-term health condition which means he suffers from digestive problems, is prone to weight loss and needs nutritional supplements every day. The condition can result in unpredictable flare-ups and the symptoms need to be controlled. Y needs frequent and regular treatment at hospital and has needed hospital admission several times. He has at times had to use a gastric feeding tube.
27. Y also has special educational needs. He has a diagnosis of Autistic Spectrum Disorder. He had a statement of special educational needs which converted to an EHC Plan. The process of transferring to the EHC Plan began in October 2017.
28. Children’s social care was involved with Mrs X and her family at various times between 2012 and December 2016. Y had a Child in Need Plan and the case was held in the Children with Disabilities (CWD) Team. This was because of difficulties managing Y’s health needs and his behaviour, as well as other problems within the family and between the parents. The family received some support, including short breaks.
29. During this time Mrs X made two unsuccessful iCount applications. Y’s social worker helped her complete an application in July 2015. This explained Y’s medical condition and the difficulties following his treatment and nutrition plan. It referred to his behavioural problems, learning difficulties, need for support with daily living tasks, need for supervision because of lack of awareness of danger. It said Mrs X would like support and advice in managing Y’s behaviours, activities for Y, and short breaks. It noted Y was receiving the care and mobility components of Disability Living Allowance.
30. The Council closed the application on both occasions on the basis that Mrs X had failed to provide extra information it had asked for about the effect of Y’s disabilities on daily living. Mrs X disputes that she failed to provide the necessary information. She says she handed the social worker a copy of Y’s autism assessment. She declined to apply a third time saying she felt it was obvious Y needed support because of his physical and learning disabilities.
31. There is evidence in the records of discussions in 2015 and 2016 within children’s services about the Child in Need team. In recommending transferring the case to the CWD Team, the record notes that Y’s disability was “having an impact on family functioning and relationships”.
32. In December 2016 the Council closed the social care case while noting the risks to Y from refusing to eat, and the additional difficulties of his recent autism diagnosis. It closed it on the basis of ‘non-engagement’ by Mrs X. The record says “there is no current care package as the iCount form was not completed and Mrs X refused to send the additional information. She said she no longer wanted support for Y”. It said if she provided further information needed for iCount then ‘services can be explored’. Mrs X says she asked for the case to be closed because she was not receiving any help.

Events from May 2017 – children’s social care

33. In May 2017 the Council received a safeguarding referral from Y’s consultant paediatrician at the hospital where he had been admitted. Dr B explained the medical condition Y suffers from. He raised concerns that the parents were struggling to manage his condition, with the need for regular medication and the risk of admission to hospital through weight loss. Dr B advised that Y also has behavioural difficulties. He concluded that the family would need additional support to manage Y’s condition. He suggested a meeting of professionals involved in Y’s care to discuss the support that could be provided.
34. The Council decided to carry out a child and family assessment. There was a professionals meeting at the hospital where Dr B provided further details of the treatment Y needed, the challenges this presented given Y’s behavioural difficulties, and the difficulties Mrs X had managing the situation. Dr B reported “that if the situation continues [Y] could develop quite severe health problems” and said his aim was “to get the family as much support as possible”.
35. As part of the social care assessment the social worker, SW1, obtained information from Y’s school. She visited the family at home and saw Mrs X and her other children. Y was still in hospital. The record of the visit notes that Mrs X told the social worker Y needed support with personal care and it was difficult to get him to take his medicine and supplements. She explained the effect his condition had on toileting and the impact on the rest of the family. She spoke about the effect of his autism on his behaviour. Mrs X was also going through a separation from her husband.
36. The record also shows that the social worker discussed the history of Mrs X’s iCount applications with her. Mrs X said she had completed a form but the Council said it did not receive it and advised her to complete it again. She said an officer had helped her do this but the Council told her it needed further information. Mrs X said she did not receive a letter about this although she had been told the Council had sent her one. She said she had completed another application and sent it off did but not get a response or a call back when she chased it up.
37. The Council advised Mrs X to complete another iCount application. She did so with the help of SW1 on 16 June 2017. Boxes were ticked to confirm the following:
• Y had a statement of special educational needs
• he has a diagnosis of autism
• he has communication difficulties
• he has a moderate learning disability
• he needed help with personal care, and support and supervision with his behaviour
• his condition interfered with his daily activities and his ability to take part in social and educational activities.
38. The form provided further explanation of Y’s difficulties. It said he presents with severe challenging behaviour. It said his medical condition severely affects him and “curtails his ability to thrive well”. He was constantly in and out of hospital and had to have a special nutritional feed and a feeding tube. His mood was volatile and he could become very aggressive and difficult to manage. It referred to Y’s school and Dr B as contacts for further information.
39. Following the social work assessment, the Council decided Y was a child in need. The Social Work Manager commented on the assessment document:

“[Y] by virtue of his disability is a Child in Need, however the impact his disability has on the family render all children in need of support.”

“It is unclear as to whether mother has been resistant to support previously or whether miscommunication has been the issue. However, I do not feel that this should be a prohibitor to future support and intervention”.

40. The Council drew up a Child in Need Plan in June 2017. This noted the difficulties in managing Y’s treatment plan and the effect of his autism and challenging behaviour. It recognised the impact on the other children. There was also pressure on the family because of the parents’ separation and their inadequate housing. The Plan included the following:
• to develop a clear plan between home and school for monitoring Y’s nutrition
• social worker/family support worker to support and guide Mrs X in managing Y’s difficult behaviours
• Y to be registered for iCount and access short breaks to give the whole family including Y some respite and “improve their emotional well-being”, this action to be completed by 31 July 2017.
• social worker to work with the siblings to help them understand Y’s conditions.
41. The Social Work Manager approved the Plan, agreeing that it “reflects the support required for the children and family”.
42. The Child in Need assessment also recommended a referral to the CWD Team. The CWD Team said without iCount registration it could not provide support.
43. The Social Work Manager felt “strongly” that the family needed the support identified in the Child in Need Plan. He agreed to transfer the case to the Child in Need team to ensure a “structured and robust multi-agency approach” to improve the welfare of all the children. Child in Need meetings started.
44. In mid-July SW1 contacted the iCount Register team to ask about progress with Mrs X’s application. The iCount officer confirmed the iCount Panel would consider the application on 14 July 2017, having missed the June Panel because of leave arrangements. She said the Council would write to Mrs X to inform her of the decision up to two weeks after the meeting.
45. The Council has not provided a copy of a letter asking for further information or a record of it having been sent. There are no minutes of the iCount Panel meeting. The Council says it does not take minutes. Rather it says it records its decision on the criteria sheet.
46. It has provided a copy of the eligibility criteria sheet dated 14 July 2017. This shows the following categories marked, although some boxes appear to have been ticked and then crossed out:
• health category – severe
• personal care category – (marked moderate and then crossed out)
• safety and supervision – mild (moderate crossed out)
• learning difficulty – crossed out
• behaviour and social integration – moderate.
47. On 7 August 2017 Y’s new social worker, SW2, asked for an update on the iCount application. The Head of CWD replied saying she was attaching the last letter sent to the family. She referred to the decision in October 2016 not to pursue the application when Mrs X told the Council “she could not be bothered” having failed to respond to requests for further information.
48. Two weeks later Mrs X asked for an update on the application herself. The iCount Officer told her the Panel had sent her a letter on 21 August 2017 and when she received it she should complete the form and return it with the additional information.
49. Mrs X replied that she had delivered supporting documents in person at the Council offices. She asked the Council to return a copy of Y’s autism diagnosis.
50. In a supervision meeting with SW2 at the end of September 2017 the record notes concerns about Y’s disabilities which were affecting the younger children, as well as concern about pressure on Mrs X. She was now a single parent having to take Y to hospital once a week and living in unsuitable accommodation. The decision was that SW2 should contact the CWD Team about transferring the case and ask Mrs X to provide further information to the Team about Y’s needs
51. A Child in Need Review meeting took place on 28 September 2017. The minutes do not record that anyone from the CWD Team was present, although in the supervision session it had been agreed they would be invited. The meeting discussed the family’s housing problems, Y’s difficulty managing his own health needs and his need for support, and the need for Mrs X to have support with managing his behavioural difficulties. SW2 confirmed Mrs X had submitted the information the CWD team had asked for. The team was currently considering the iCount application and the case would transfer to the CWD Team if the application was successful.
52. The iCount Panel considered Mrs X’s application again on 4 October 2017. Case notes and email records show that the Panel decided not to register Y for iCount “due to lack of information/evidence”. The CWD Team asked SW2 to obtain a report from the school and for Mrs X to provide details about how Y’s disability affects him and everyone else in the household. It said this was in order to gain “a more up to date and accurate picture of his needs”. SW2 telephoned Mrs X to tell her the decision and advise her to gather current evidence from Y’s consultant and GP. Mrs X said she was surprised at the decision not to register Y as she said the Council had all the information needed about his health needs. She agreed SW2 could call the consultant and Y’s school, which she did.
53. The Child in Need team decided to close Mrs X’s case on 11 October 2017. The record of the decision said the latest Review meeting “had a positive outcome”’. The school did not have any further concerns about Y, although “he is not always compliant” with requests to take his nutritional drinks. It noted all the concerns previously raised about Y’s medical condition and learning needs and concerns about his weight. Action agreed was to write to the parents and other agencies advising that social care would be closing the case. The team would contact the CWD Team again in order to re-submit the iCount application.
54. I have not seen any record of a letter to Mrs X informing her of the decision to close the case. Mrs X says she did not receive one.
55. SW2 continued to seek evidence for the iCount application. Y’s consultant, Dr B, provided a supporting letter dated 9 November 2017 which set out in detail Y’s medical symptoms, the difficulty controlling them which was compounded by his autism, and the serious risks of failing to keep to his treatment plan. Dr B explained that Y was receiving injections every week. He described the effect of Y’s autism on his ability to deal with his health condition and on his behaviour. He said he hoped this information would enable the Council to consider if Y met the threshold for iCount registration. He also said the parents were now separated and the family was homeless and living in a hotel.
56. On 8 December 2017 SW2 sent a copy of Dr B’s letter to the iCount register team. She also sent comments from Y’s school confirming his sometimes aggressive and intimidating behaviour.
57. Towards the end of January 2018 Mrs X asked the iCount officer for an update on her application. She asked for a written decision and the return of the supporting documents she had submitted. I have seen no evidence of a reply.
58. The next event the Council has referred to is an iCount Panel on 21 February 2018 which decided Y did not qualify for the register. The Council has provided a copy of a letter to Mrs X dated 2 March 2018 informing her of the decision. The letter says the Council is aware she had previously provided “comprehensive information from education and health services”. However it said it still did not have enough information about Y’s support needs at home to register him. It asked for a statement about the areas where he needed additional support at home and how his needs impact on his daily life and that of the immediate family. The Council sent a copy of the registration criteria and a link to the website where she could find out more about the eligibility criteria and the kind of information needed. Mrs X says she did not receive this letter. She says she tried to contact her son’s social worker to chase it up but the social worker did not answer her calls. Eventually she managed to contact the social worker who promised to send her a copy of the letter, and said she would contact the hospital and Y’s school for more information.
59. In mid-May 2018 Mrs X made a formal complaint to the Council. She said she was distressed and at breaking point. She explained the circumstances of her separation, her housing problems, difficulties looking after the children as a single parent, and Y’s special educational needs and health problems. She said she wanted to complain that:
• she had applied for iCount three times but had had no response
• despite several home visits and referrals she had had no support from Children’s Services and was struggling to work, look after her children and take Y to his weekly hospital appointments, as well as coping with her own health problems
• she had asked for a carers assessment but the Council had not offered her one
• she wanted social care support for Y and respite care so she could have a break and spend time with her other children.
60. The Council acknowledged the complaint on 29 May 2018. It said it would refer it for consideration under the statutory children’s social care complaints procedure and would contact her, probably within ten working days.
61. By 13 June 2018 Mrs X had not heard any more and chased the Council. There was further correspondence in which the Council said it would respond to the complaint, and Ms X asked to go straight to stage 2 of the procedure because of the delay in the response. The Council apologised for the delay, which it said was due to difficulty in allocating the complaint to the right team.
62. The Council sent Mrs X a stage 1 response on 19 June 2018. It said:
• Y’s case was open to the CWD Team from May to December 2016
• during this time she had made two iCount applications and both times the Council asked for more information
• it told her once she received the outcome of the autism assessment this would support her application
• then in an email of 31 October 2016 she said she would not be applying again and wanted the case closed
• it had had no further contact from her since then.
63. The Council said that to be registered, Y must meet the iCount criteria. She had to show evidence of the impact of his disability on daily living. It enclosed a carer’s assessment form and another iCount application to complete.
64. Mrs X replied saying she was very disappointed with the response and would write shortly to express her concerns. Her MP then wrote to the Council on her behalf. He said Mrs X was worried about lack of support with Y over the summer holidays and about lack of suitable housing.
65. The Council replied to the MP on 4 July 2018. It set out the history of the iCount applications, referring to the decision to close the case in 2016 because of a lack of further information. Regarding the further application in June 2017, it said Mrs X had failed to provide further information the Panel had asked for about the impact of Y’s disability on family life. It said although she provided more information in October 2017 this was still not sufficient to register Y. After receiving further information in December 2017 the Panel in February 2018 again decided there was not enough information to qualify for registration. The Council said it had told the parents it needed more information about the impact of disability on daily life including practical examples. It said it wrote to the family in March 2018 and had not heard from them until it received the complaint from Mrs X in May.
66. On 12 July 2018 Mrs X wrote to the Council to say she disagreed with the complaint response because she had provided all the information needed for her request for support for her son. She said she had copies of assessments showing he was a child in need.
67. The Council’s response was that it was not possible to pursue the issues she raised through the complaints system. It said at stage 1 it had advised that she needed to complete the application forms for an assessment and iCount. It said “the resolution you are seeking is to receive support for your son but this can only be achieved by completing the forms and providing necessary evidence”. It said this could be done outside the complaints procedure.
68. In mid-July 2018 Mrs X told the Council she refused to complete another iCount form as she had submitted four already. She said despite providing all the documents asked for she had had no response. She confirmed she wanted to continue with her complaint. The Council again refused to progress the complaint. It said if she had evidence she had completed the forms and had submitted the evidence needed she should provide it. It said as she had made an application in 2016 which was then closed, it presumed she would need to fill in another one.
69. Mrs X contacted the Ombudsman in September 2018 to complain that the Council had refused to continue with her complaint. In discussions between the Ombudsman, the Council and Mrs X, the Council agreed to offer Mrs X a meeting with a social worker to go through another iCount application with her to ensure she had the opportunity to provide all the information needed. The Council also said it was in the process of providing a further response to her complaint. We agreed that if Mrs X was not satisfied with the response when she received it we would consider whether to investigate the complaint further. Alternatively we might refer it back to the Council to deal with at stage 2 of the statutory children’s social care complaints procedure.
70. In November 2018 the Council wrote to Mrs X with an update on the ‘ongoing complaint’. It sent her a copy of the letter from March 2018 saying it would need further evidence to progress the application any further. It said as it had not received anything from her it closed the case. It said it would reactivate the application and offer her a meeting to help her with it. The Council asked for any new medical information since the previous year. It also sent her another carer’s self-assessment form as she had not completed it previously.
71. Mrs X was not happy with this response as she said she had not received the March 2018 letter at the time and the Council never told her the case was closed. While she accepted the offer to complete another application in discussion with a social worker, she wanted to pursue the complaint about the previous application. She also explained that she had asked for social care needs to be included in Y’s EHC Plan but the Council had failed to carry out an assessment and said his case was closed.
72. The Ombudsman agreed, exceptionally, to investigate her complaint rather than ask the Council to consider it at stage 2. This was partly because we would be able to deal with both the education and social care aspects of the complaint in one investigation. Also, at that stage we understood that the key issue in the social care complaint was the limited one of whether there was evidence that Mrs X had failed to respond to requests for information in connection with her latest iCount application.
73. By this time there was a new social worker involved, SW3. SW3 met Mrs X and discussed her reasons for wanting to apply for iCount registration and the support she wanted, but she says Mrs X refused to complete another application form. SW3 says she presented her notes of the meeting to the iCount Panel at the end of January 2019 along with information from previous applications. My understanding is she also provided a copy of an email from Y’s school from December 2018 confirming Y’s behavioural problems, and a copy of Y’s EHC Plan. One Panel member wanted further information about Y’s treatment. After further discussion with Mrs X, SW3 says she looked back over all Y’s previous paperwork and found a copy of a letter from Dr B dated 14 August 2017. This detailed Y’s medical history and symptoms, and the effect of his autism and asked for social care support for the family. After further discussion with Mrs X, SW3 says Mrs X provided her with a copy of Dr B’s letter of 9 November 2017 which she had sent to the previous social worker.
74. SW3 took this information to the Panel the following day and it agreed to approve the application. The record shows it decided Y qualified on the basis of ‘moderate physical disability’. The eligibility criteria chart shows the following categories marked:
• Health – moderate (severe crossed out)
• Continence - moderate
• Safety and supervision – mild
• Behaviour and social integration - moderate
75. Mrs X has now received Y’s iCount card and I understand she is waiting for an assessment of the support that the Council can provide.

Education Health and Care assessment

76. The Council started the process of converting Y’s statement of special educational needs to an EHC Plan on 3 October 2017 with a transfer review meeting.
77. The Council says the SEN assessment team asked for social care advice by telephone in November or December 2017. The Council cannot provide the date when advice was sought or details of the response provided.
78. The Council issued the draft EHC Plan in January 2018. Mrs X told the Council she did not agree with it as it did not contain any provision for Y’s social care and health needs. Mrs X provided copies of the report of Y’s autism assessment and diagnosis and a copy of her last Child in Need Plan. She asked for social care support to be included in the EHC Plan. The Council’s response was that the Child in Need Plan had lapsed and so could not be included. It said it would refer to the fact Y had a Child in Need Plan in the past. It advised that if the situation changed and Y started to receive social care support it could amend the EHC Plan. The Council suggested Mrs X contact children’s social care herself if she wanted an assessment.
79. The Council issued the final EHC Plan on 14 March 2018. In the section on social care needs relating to special education needs it says:

“Needs currently met within Universal Services although parents are attempting to gain additional support due to the strain on the family caused by [Y’s] SEN and health needs. [Y] has been the subject of a Child In Need Plan in the past”.

80. As far as I am aware Mrs X did not appeal to the SEND Tribunal. This may be because she did not dispute any of the education provision.

Analysis – was there fault causing injustice?

Children’s social care and iCount

81. Y has a serious lifelong medical condition requiring careful control of his symptoms, as well as autism and learning difficulties. He is clearly a disabled child and the Council has accepted this is the case. It therefore has a duty to assess his needs to ensure it provides services to promote his welfare if needed. It also has a duty to assess his mother’s needs as a parent carer if she asks for this.
82. The Council took prompt action to carry out a child and family assessment when it received the referral from Dr B in May 2017. The Child in Need Plan in June 2017 identified a need for support, including respite, which was strongly supported by the Manager. The support was not put in place because Mrs X did not manage to make a successful iCount application.
83. The Council says Mrs X has not been able to access respite care or any other services from the CWD Team because all her previous iCount applications have failed through lack of information. It says the information was insufficient, outdated or not relevant. Also it says Mrs X had failed to sign the forms and provided contradictory information about who was the ‘first parent’ and which parent the child lived with. The Council says her final application only succeeded because SW3 met Mrs X to update the application, which prompted her to provide more relevant information. It said SW3 contacted the professionals Mrs X referred her to, which is not a service the Council would normally provide when assessing someone for the iCount register.
84. It may well be the case that Mrs X did not sign and date the iCount forms in the past and that because of her housing difficulties the family’s living arrangements were changing or unclear. But I agree with the Social Work Manager’s view that any communication difficulties in the past should not prevent the family accessing services they may be entitled to.
85. The Council is entitled to set a threshold for access to services through the CWD Team. However in this case, in my view, it has allowed its own procedural rules to act as a barrier to access to support identified as needed by a child in need. The Council identified a need for respite care and a date by which it should be provided and yet it allowed failure to complete the registration process to prevent the family obtaining the agreed support. This could be viewed as a form of gate-keeping. I consider the Council’s approach amounts to fault.
86. I also consider that the way the Council dealt with the 2017 iCount application was flawed. The iCount Panel’s decision-making is not transparent. Without a record showing how it arrives at its decisions and what evidence it takes into account, it is not possible to properly understand the rationale for its decisions. This lack of record-keeping and explanation amounts to fault.
87. In my view the decision-making itself was flawed. I can see no reason why, given the number and levels of categories of need the iCount Panel felt Y met in July 2017, it decided he did not qualify for registration. The eligibility criteria table shows he had one category marked as ‘severe’ and at least two marked ‘mild’ or ‘moderate’. This is sufficient to meet the eligibility criteria according to the Council’s policy. Unless the Council can provide a satisfactory explanation for the decision, I consider it was at fault for making a decision that was at odds with its own findings.
88. I also consider the Council was at fault in finding that Y did not have learning difficulties. This is because the finding takes no account of the information the Council already had on file from Y’s statement of special educational needs and Mrs X’s previous iCount applications. There is no evidence either that in reaching its decision the Panel considered the information provided in Dr B’s referral and gathered by the Child in Need team in its assessment.
89. The February 2018 Panel again refused the application on the basis of insufficient information. There is no evidence it considered Dr B’s letter of November 2017, even though the Council’s records show it received it in December 2017.
90. It is to SW3’s credit that she persisted in pursuing the iCount application a fifth time. I recognise that Mrs X’s refusal to complete the form made this more difficult. But I also find her reluctance understandable given her past history of requests for support. SW3 looked through previous records. So it is not clear why she did not see Dr B’s November 2017 letter. She found a letter on file from him from August 2017. This appears to be the first time this earlier letter was mentioned.
91. On balance the evidence suggests the February 2018 Panel did not consider either of these letters and I consider this a matter of fault. The Panel made a decision to reject Mrs X’s application without considering key pieces of evidence.
92. Contrary to what the Council has said I see nothing to suggest that any new documentary evidence was presented to the January 2019 Panel, apart from the email from Y’s school confirming his behavioural problems, a matter already on record. This time the application was successful. The decision took account of the medical evidence submitted in 2017. Therefore I cannot agree that the only reason it succeeded was because of “more relevant evidence”. If the February 2018 Panel had considered the same evidence it is likely it would have approved the application then.
93. The decision to approve the application in January 2019 was based on agreeing four categories at ‘mild’ or ‘moderate’ level. According to the Council’s policy, this is no more likely to meet the eligibility criteria than the finding of one category at the ‘severe’ level and two at ‘mild’ or ‘moderate’ that failed in July 2017. I consider that this inconsistent decision-making is fault.
94. There are also disputes about whether Mrs X received letters from the Council telling her the decisions of the various Panels. The Council has not provided evidence of the disputed letters apart from the one dated 2 March 2018. I do not know why Mrs X did not receive this letter. She had moved from the address it was sent to by this date, but was getting her post redirected. But in any event, for the reasons given above, I do not consider that lack of response to this letter is a sufficient reason for the February 2018 Panel failing to consider all the evidence already provided and coming to the same decision it came to in January 2019.
95. Under Y’s Child in Need Plan the family should have had access to support, including short breaks, from the end of July 2017. This has been frustrated by the iCount application process, which in this case I have found to be flawed. I do not know how much respite the Council would have decided the family should receive. Nor do I know what the outcome will be of the assessment the Council is due to carry out. Nevertheless the loss of opportunity to access short breaks represents an injustice to Mrs X and her family. Mrs X has also experienced unnecessary frustration and anxiety as a result of the delay and other faults in the way the Council handled the iCount applications since May 2017.

Complaint handling

96. I also find fault in the way the Council dealt with Mrs X’s complaint. In explaining why it had not progressed her iCount applications, the stage 1 response said the Council had closed her case in 2016 and it had not heard from her since. This is not correct as it ignores the 2017 iCount application and subsequent contacts.
97. In find that the Council was at fault in refusing to consider Mrs X’s complaint under the complaints procedure. Instead it treated it as a request for a service and said she should complete another application form. When the Ombudsman became involved the Council said it was in fact responding to the complaint and agreed to separate that issue out from the continuing application.
98. Yet when Mrs X said she was not satisfied with the response, the Council declined to progress the complaint to stage 2. The complaint met the criteria for consideration under the statutory complaints procedure and once it had started, Mrs X had a right to continue to stage 2. The Council was at fault in failing to deal with the complaint under the statutory complaints procedure.
99. This caused Mrs X unnecessary time and trouble in having to come to the Ombudsman to pursue her complaint.

Education Health and Care assessment

100. As part of converting Y’s statement of special educational needs to an EHC Plan the Council was required to carry out an assessment. This must consider whether there are additional health or social care needs as well as education needs that should be included in the EHC Plan. The Council must seek social care advice. The Council says it did, but cannot say exactly when. It has provided no evidence of doing so or what information was provided. The Council can only decide it does not need to carry out any new assessment if all concerned agree the existing information is sufficient. The Council is at fault in failing to check this with Mrs X and failing to record the request for advice and the outcome. When it sought the social care advice, Y was either still on a Child in Need Plan or it had only very recently ended. The Council should have considered whether he had any social care needs affecting his special educational needs.
101. Even if it did not do so when it consulted children’s social care, Mrs X’s response to the draft EHC Plan in January 2018 should have prompted further consideration. It was not enough to say there was no Child in Need Plan and therefore there could be no reference to it in the EHC Plan. The EHC Plan noted that Mrs X was still seeking social care support. In my view the Council should have considered a social care assessment for EHC assessment purposes at this point.
102. I do not know how a social care assessment would have affected the EHC Plan. Mrs X could have appealed the final EHC Plan if she disagreed with other parts of it as well. It is not for the Ombudsman to say what provision an EHC Plan should contain. However the faults I have identified meant Mrs X lost the opportunity to have Y’s social care needs considered as part of the EHC assessment. They also caused unnecessary frustration and time and trouble for her.

Agreed action

103. To remedy the injustice caused the Council has agreed to take the following action within one month of the final decision on the complaint.
• Apologise to Mrs X for the faults I have identified.
• Pay her £750 to recognise the loss of opportunity to access respite care services for the past 18 months (allowing for a month to put the services in place), and to have Y’s social care needs considered in his EHC assessment.
• Pay her £500 to recognise the anxiety and distress experienced because of this loss of potential access to services.
• Pay her £400 to recognise the considerable distress and frustration she has experienced and the unnecessary time and effort involved in pursuing her iCount application since May 2017 and her complaint.
104. The Council has also agreed to my recommendation to carry out a social care assessment for the purposes of Y’s EHC Plan, or incorporate any relevant information from the latest assessment into it. The Council has confirmed it has now carried out an Early Help assessment and that a draft EHC Plan is due to be issued shortly following the latest Annual Review. The Council has also referred Mrs X to the CWD Team for a full child and family assessment, including a parent carer’s assessment. It says it will complete this within one month.
105. Within one month of the decision on the complaint the Council will remind relevant staff of the requirements of the statutory children’s social care complaints procedure so that complainants are not denied access to it.
106. I recommended that within three months of the decision the Council should review its procedures to ensure that the iCount process does not place unnecessary barriers in the way of disabled children receiving support they may need. This should include:
• ensuring the iCount Panel considers all relevant evidence in reaching its decisions, including information from assessments by the Child in Need team;
• making a clear record of the Panel’s decision-making including the evidence considered, which criteria it decides the applicant meets, and the reasons for its decision;
• setting out the reasons for the decision in writing to the applicant and recording that the letter is sent.
107. The Council has confirmed there is a new Head of Service for All Age Learning Disability who is already carrying out a review of processes which is due to be completed by the end of April 2019. The Council will include the recommendations made here in the review.
108. Within three months of the decision on the complaint the Council will send the Ombudsman an action plan showing the improvements it will make.

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Final decision

109. I have found that there was fault by the Council causing injustice to Mrs X and her son. I am satisfied with the action the Council has agreed to take to remedy the injustice and so I have completed my investigation. Mrs X may make a further complaint to the Ombudsman once the Council has carried out the assessment of her and her son’s needs and we will consider whether it is appropriate to recommend any further remedy for lack of services received.

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Investigator's decision on behalf of the Ombudsman