Summary: Mr B complains the Council has not dealt properly with his son’s social care needs. The Council was at fault because it did not record its decision making about C’s assessment and did not deal with Mr B’s complaint properly. The Council has agreed to apologise to Mr B, backdate C’s support to his original application date and provide guidance to staff.

The complaint

1. The complainant, whom I shall refer to as Mr B, complains the Council has not properly dealt with his son C’s social care needs because it has:
• Delayed assessing and providing support for C;
• Reduced the support provided and not explained its reasons for this; and;
• Not dealt with his complaint properly.
2. Mr B says C’s wellbeing and social skills have been adversely affected and this has caused avoidable distress to the family.

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The Ombudsman’s role and powers

3. 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)
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)

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How I considered this complaint

5. I have spoken to Mr B about his complaint and considered the information he has provided to the Ombudsman. I have also considered the Council’s response to his complaint and its response to my enquiries.
6. It appears from the information available that there may also have been problems with the annual review of C’s EHCP, regarding delays and consideration of social care needs. I have therefore decided to investigate this issue.
7. Mr B 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

The Council’s complaints process

8. The Council has a one-stage complaints process. The Council says complaints may be handled differently if it concerns Children’s Services. A complaint will be investigated by a senior officer and should take no longer than 20 days.

Children’s services complaints

9. 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. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
10. There are time limits within which the Council should complete its investigations. At stage 2 the investigation of the complaint should take no longer than 25 days or 65 days where the complaint is more complex. The timescales only apply from the date when the complaint and scope of investigation is agreed with the complainant where the complaint has been submitted orally.
11. If a complaint goes to stage 3 then the panel’s consideration of the complaint should take no longer than 35 days and the Council has a further 15 days to respond to the findings.

Children Act 1989

12. The Council has a duty to safeguard and promote the welfare of children by providing a range of services appropriate to each child’s needs. (Children Act 1989, section 17)

Special Educational Needs

13. A child with SEN may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. (SEND Code of Guidance)
14. Where an EHCP is reviewed, the local authority and school must cooperate to ensure a review meeting takes place. A child’s parents must be invited to attend and given two weeks’ notice of the meeting. All advice and information should be sent to attendees at least two weeks before the meeting. Within four weeks of a review meeting, the Council must decide what action it is going to take and inform those involved. If the EHCP needs to be amended the Council should start the amendment process without delay. (SEND Code of Guidance)

OFSTED

15. 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.

What happened

16. Mr B moved home in September 2019. C was receiving ten hours of support where he previously lived for some time. Mr B requested that the Council assess C to provide support as the previous Council had done.
17. The Council assessed C at a meeting in late October and finalised the process at the end of December. The assessment for C was completed by a student social worker and overseen by a manager. After submission a senior manager reviewed the application which included £6,282 for yoga, swimming lessons and enabling support.
18. In February 2020, the Council decided to provide C a reduced package of six hours of support in-house totalling £3,442.
19. Mr B complained about the reduction in support and the lack of support for a yoga teacher. The Council responded saying it was getting more information. After receiving more information from Mr B’s previous Council, it approved another application for more support. The Council also declined to backdate its decision about the support offered to C.
20. The Council changed its decision and allowed the initial six hours support to be provided by direct payments.
21. In December 2020, following its earlier decision, the Council considered another application for support for C in relation to swimming and yoga. This was agreed in December 2020. The Council said it wanted to meet with Mr B to identify if this met C’s needs, or whether there was a shortfall.
22. The Council has sent Mr B an agreement for the further support. Mr B remains unhappy that this is too restrictive.
23. Mr B’s son C had an EHCP. An annual review of the EHCP was held in January 2020. C’s final EHCP was completed in June 2020.

Analysis

24. The Council has not been able to provide any record of the decision making in how it dealt with C’s application for support. The Council agreed in June 2020 that a further application for s17 support should be considered. The Council has since agreed C’s support should be via direct payments and it should provide further support for C. This was fault by the Council. C suffered injustice because the Council has delayed providing support.
25. If the Council had provided the level of support in February 2020 that it has now agreed, it is likely it would have backdated this to Mr B’s application date.
26. The Council has written to Mr B to provide direct payments in accordance with the existing assessment for C. It has said it will update C’s assessment imminently and will review whether C’s needs have changed. If C’s needs are identified as having changed the support provided through direct payments may change as well. This was not fault by the Council.
27. The Council dealt with Mr B’s complaint through its normal complaints procedure. As Mr B’s complaint was that the Council’s s17 assessment had not been carried out correctly, his complaint should have been dealt with through the statutory children’s services complaints procedure. This was fault by the Council. Mr B has not had his complaint considered properly.
28. The Council says staff at his new school wanted to complete the AR when they had a good foundation of knowledge about his needs and his progress. There is no evidence any information was provided by C’s social worker as part of the EHCP review. C’s EHCP annual review was completed properly. This was not fault by the Council.

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Agreed action

29. To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within four weeks of this decision:
• Apologise to Mr B and C;
• Backdate C’s currently agreed support to Mr B’s date of application;
• Provide guidance to ensure the rationale for all decision making regarding assessments and support is recorded; and
• Provide guidance to staff to ensure the statutory complaints process is used.

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Final decision

30. I have found fault causing injustice to Mr B and C. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman