Summary: Mr X complained on behalf of his wife, Mrs X, about the Council’s actions regarding its provision of special education and respite care for their child. Mr X said the Council’s actions caused avoidable stress to the family and had a negative impact on their health conditions and wellbeing. We found fault by the Council. The Council has agreed to apologise to Mrs X and make a payment to recognise the injustice caused.

The complaint

1. Mr X complained on behalf of his wife, Mrs X, about the Council’s actions regarding the provision of SEN education and respite care for their child. Mr X complained the Council:
1. Did not provide adequate SEN education from July 2020 onwards;
2. Did not provide an adequate remedy for the time taken to arrange respite care, from initial contact in February 2019 to the time of the first overnight stay in January 2020, and
3. Incurred delays in progressing Mrs X’s complaint through the statutory complaints process.
2. Mr X says the Council’s actions caused avoidable stress to the family. He says this had a negative impact on Mrs X’s health conditions and wellbeing. He would like the Council to provide appropriate SEN education and consistent and reliable respite care. He would also like the Council to provide adequate compensation.

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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 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)
4. 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)
5. 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)
6. 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

7. I discussed the complaint with Mr and Mrs X and have considered the information they provided.
8. I made enquiries to the Council and considered the information it provided.
9. Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

The Children Act 1989

10. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
11. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in section 2.
12. Services which can be provided under section 2 CSDPA include:

• practical assistance in the home including home based short breaks / respite care;
• recreational / educational facilities including community based short breaks; and
• travel and other assistance.

13. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly. Statutory guidance published in 2018, (Working Together to Safeguard Children), sets out the legislative requirements placed on individual services.

Assessment of need

14. The expectation of ‘Working Together to Safeguard Children’ is that an assessment which identifies significant needs will generally lead to the provision of services, but it is not the case that there is a duty to meet every assessed need. Whether a service is required is dependent on the nature and extent of the need assessed and the consequences of not providing a service. Councils may use eligibility criteria and take into account their available resources when providing services under section 17 of the Children Act.
15. If a council is satisfied it is ‘necessary’ to provide support services under section 2 of the CSDPA then services must be provided regardless of the council’s resources.

Special Educational Needs

16. A child with special educational needs (SEN) 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.
17. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place.
18. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Children’s social care statutory complaints procedure

19. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.
20. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
21. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks (65 working days) to complete stage two of the process.
22. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.
23. If a council has investigated something under the statutory children’s complaint process, we would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

24. This chronology includes key events in this case and does not cover everything that happened.
25. Mr and Mrs X moved to the area with their child, Child Y, in February 2019. Child Y has a diagnosis of autism spectrum disorder and other medical conditions. Mrs X also has a diagnosis of autism spectrum disorder and other medical conditions.
26. In March 2019, the Council started a Children and Families assessment. At around the same time, the Council initiated a Child in Need (CIN) plan for Child Y.
27. In September 2019, as part of the CIN plan, the Council identified a need for overnight respite care for Child Y.
28. In October and November 2019, Mrs X complained to the Council. She said the Council had not provided Child Y with SEN education and had failed to provide respite care.
29. In December 2019, Child Y was made the subject of a Child Protection Plan. At about this time, Child Y attended an introductory visit at a third-party respite provider, Provider A.
30. In January 2020, Mrs X brought her complaint to us. As the Council had not concluded its own investigation, we asked it to consider Mrs X’s complaints at stage two of the statutory complaints procedure.
31. Child Y attended their first respite care visit with Provider A in January 2020 and attended further visits in March and April 2020.
32. On 24 April 2020, the stage two independent investigator produced their report. It said the Council had searched for full time education for Child Y but there was a regional lack of suitable provision. It said the Council had arranged home tuition but acknowledged there was a significant period when Child Y did not receive any education. However, it said it considered this was partially attributable to Child Y’s challenging behaviour.
33. The stage two report said the investigator found no evidence of significant discussions about the need for respite provision until six months after Mr and Mrs X moved to the area. The investigator said they would have expected this to be a key area to focus on due to the complexities of the family situation and the previous service provision made by the local authority where Mr and Mrs X used to live. The stage two investigation found the Council did not address the issue of respite care in a timely manner. It upheld Mrs X’s complaint and said the gap between initial contact by the family and the first overnight stay was 11 months.
34. Provider A ended its respite care package for Child Y on 28 April 2020 following an incident involving Child Y.
35. The Council provided the stage two report to Mrs X on 13 May 2020. It apologised for the delay in arranging suitable respite provision and offered a payment in recognition of the period of missed education. The Council also apologised for the time taken to consider the complaint.
36. Mrs X was unhappy with the Council’s response and asked for her complaint to be considered at stage three of the statutory process.
37. In July 2020, Mrs X accepted the Council’s offer of payment regarding Child Y’s missed education.
38. In August and September 2020, Mrs X provided further information relating to her stage three complaint.
39. The Council responded in October 2020 and said it was waiting for a date for a face-to face hearing. It said it had contacted other respite care providers but had not been able to secure the required provision. The Council said this was in part due to the Covid-19 pandemic and the impact on services.
40. Mrs X complained to the Council on 14 November 2021. She said the Council was failing to make the provision outlined in Child Y’s EHC plan and said she considered Child Y’s placement at an independent specialist school was not meeting their needs.
41. The stage three panel hearing took place on 15 November 2021, with Mr and Mrs X attending via a video link. The panel reviewed the stage two investigation report and discussed the complaints with Mr and Mrs X. The panel agreed with the findings of the stage two investigation and acknowledged the payment made in July 2020 regarding Child Y’s missed education. The Council said it was seeking appropriate respite care but had not identified a provider who was able to accommodate Child Y. The Council also said Mr and Mrs X did not accept some of the placements offered to them. Mr and Mrs X gave their reasons for not accepting an offer of respite by a third-party provider.
42. On 30 November 2021, the Council replied to Mrs X’s complaint about Child Y’s SEN provision. The Council referred to the provision set out in the EHC plan and said it considered the provision outlined was not reflective of the high level of support and intervention Child Y required. The Council said although Child Y was struggling within the school setting, they were receiving the required number of literacy and numeracy interventions each week. The Council acknowledged the school was not providing all the provision outlined in the EHC plan but said what the school was providing appeared to better match Child Y’s needs. The Council recommended bringing forward the annual review of Child Y’s EHC plan to January 2022, so the content could be reviewed and amended. The Council told Mrs X she had the right to appeal to the SEND Tribunal if she disagreed with the content of the finalised amended plan.
43. On 8 December 2021, the Council provided its decision following the stage three meeting. It agreed with the recommendations of the stage two investigation and apologised for the delay in establishing suitable respite provision. The Council acknowledged the time from Mrs X’s initial contact in February 2019 to Child Y’s first overnight stay was excessive and offered a payment of £1,000 as a remedy.
44. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us.
45. The annual review for Child Y’s EHC plan took place in January 2022.

Analysis

46. I have exercised discretion to consider the appropriateness of the remedy offered dating back to 2019. This is because the statutory process covered this period and was not concluded until December 2021. Mrs X had already brought her complaint to us by then.

Mrs X’s complaint about SEN provision for Child Y from July 2020

47. Mrs X complains the Council has not provided adequate SEN education for Child Y since July 2020. This is the period after the stage two investigation. I have not investigated the period prior to this because it is unlikely that further investigation would add to the independent investigation already undertaken or lead to a different outcome.
48. The Council says Child Y was offered a place at an independent specialist school and started their placement in September 2020. It says Child Y’s curriculum is largely community based and the school has a support plan which is reviewed regularly. It says following Mrs X’s complaint in November 2021, it carried out an early review of the EHC plan so it could be amended to reflect Child Y’s needs more accurately.
49. The Council says the school has met Child Y’s needs and has provided enhanced provision in some areas, although this enhanced provision was not reflected in the EHC plan at the time. However, it acknowledges that in doing so, it omitted making other provision that was included in the plan, although it considers this provision was not appropriate given Child Y’s current presenting difficulties.
50. Mrs X says the Council only offered Child Y two hours of education per day over five days, from December 2020 until the end of April 2021. The Council says Child Y was provided with a full-time curriculum offer by the school for this period, albeit an off-site community offer supported by a team of staff. I acknowledge Mrs X’s comments regarding this matter but have seen no evidence the Council did not provide a full-time curriculum. I acknowledge the off-site curriculum offer may not have represented a conventional classroom-based timetable for Child Y. However, in the absence of evidence to support Mrs X’s complaint regarding this matter, I do not find the Council at fault.
51. Whilst I acknowledge Mrs X’s comments that she considers the Council did not provide adequate SEN provision for Child Y, as stated at paragraph 18, we recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. Nevertheless, we consider councils should have systems in place to demonstrate due diligence in discharging their legal duty.
52. Mrs X complained the Council was failing to meet the provision of the EHC plan in November 2021. The Council responded shortly after and recommended bringing forward the annual review so it could review the SEN provision. It told Mrs X about her right to request alternative provision as part of the review process. It also told her of her right to appeal to the Tribunal if she remained dissatisfied with the final plan. Having reviewed the evidence, I am satisfied the annual review took place as recommended in January 2022.
53. As a result, the Council took appropriate action following Mrs X’s complaint. The Council has demonstrated due diligence regarding this matter, and therefore, I do not find the Council to be at fault regarding this aspect of the complaint.

The Council’s remedy for the delay in arranging respite care

54. The Council says it does not send decision or notification letters regarding agreed short break provision. It says it told Mr and Mrs X about the agreed provision via their social worker.
55. The stage two investigation found the time elapsed between Mrs X making first contact with the Council and the first overnight respite care visit taking place was 11 months. Based on the records of the CIN plan meetings, I agree with this timeframe. The Council acknowledged the delay and offered £1,000 as a remedy for this delay. Mrs X declined the offer as she says she considered the amount to be an insult.
56. It is positive the Council has itself identified the fault caused by the delay in initially arranging respite care. However, when considering whether the Council’s offer is appropriate, I must consider the injustice caused as a result of the fault identified.
57. The Council’s offer reflects the time taken to arrange respite care for Child Y. This amount is the higher amount as specified in our published guidance on remedies when considering payments to recognise severe or prolonged distress. Distress can include uncertainty, lost opportunity and undue stress and frustration.
58. Mrs X says the time without respite caused her avoidable stress and frustration, and meant she lost the opportunity to have time away from the responsibility of looking after Child Y. She says this was particularly important because of her own health conditions. Having considered our published guidance on remedies, the Council’s offer of £1,000 is an appropriate amount to recognise the injustice caused to Mrs X as a result of the initial 11-month delay in arranging respite care.
59. However, the Council’s offer of £1,000 does not adequately address the injustice caused to both Mrs X and Child Y. This is because Child Y was also affected by the delay in providing respite care for the same 11-month period. The injustice to Child Y is the distress and uncertainty caused by the missed opportunity to receive respite care for 11 months. Mrs X says Child Y missed out on social interaction with other children. The CIN records also show Child Y wanted to go out and do things without their parents.

Mrs X’s complaint about delays in progressing her complaint through the statutory process

60. The Council says it initially received Mrs X’s complaint on 14 February 2020 when we asked it to consider Mrs X’s complaints at stage two of the statutory complaints procedure. The Council says the Independent Investigator and Independent Person held a virtual meeting with Mrs X on 21 April 2020 to report the outcome of the investigation. It says it wrote to Mrs X on 13 May 2020. The Council says it completed its investigation of the complaint within the statutory 65 working day timeframe.
61. At stage three, the Council says Mrs X made a request on 17 May 2020 for a panel hearing. It says Mrs X requested a face-to-face meeting. The Council says it was unable to arrange a face-to-face meeting at that time because of Covid-19 restrictions.
62. The Council said it made several offers to Mrs X to attend a virtual meeting, but she declined because she wanted it to be held face-to-face. The Council says it tried to arrange a face-to-face meeting in July 2021 after Covid-19 restrictions had reduced, but Mrs X told the Council she was not able to attend on the dates offered. The Council said Mrs X told it she would not be available until September 2021.
63. The Council says it contacted Mrs X in August 2021 and asked her to contact it again when she was able to attend a meeting. The Council says at that time, Mrs X still wanted a face-to-face meeting, but said if her health issues did not improve, she would consider a virtual meeting. Mrs X says her health condition at that time was made worse by the lack of respite care.
64. The Council says Mrs X contacted it in October 2021 to request a virtual meeting, and the stage three meeting went ahead in November 2021.
65. The evidence shows we asked the Council to consider Mrs X’s complaint on 9 January 2020, and the Council acknowledged receipt of the request on 15 January 2020.
66. The Council says the statutory guidance says the timescale for commencing a complaint should be from the date the complainant finalises the components of the complaint. The Council refers to the statutory guidance which says details of the complaint must be recorded and agreed with the complainant if the complaint was submitted orally. The guidance also says, “Should the complainant amend the written record of his complaint, the Stage 2 timescale will start from the date that the complaint is finalised”. The Council says Mrs X signed a statement of complaint on 11 February 2020 and therefore this is the start date. The Council says it provided its response 64 working days later, on 13 May 2020, within the statutory 65 day timescale.
67. I acknowledge the Council’s comments regarding this. However, Mrs X’s complaint was submitted in writing on 9 January 2020 and did not differ from the agreed statement of complaint.
68. The statutory guidance accompanies The Children Act 1989 Representations Procedure (England) Regulations 2006, (the Regulations). Part 4, 14 (3)(a) of the Regulations says the start date is “the date on which the local authority decide that the person making the representations has a sufficient interest to warrant his representations being considered by them”. The Council says it appointed an Independent Investigating Officer on 13 January 2020. I am satisfied the Council therefore decided Mrs X had a sufficient interest for it to accept the complaint at that time. I am therefore satisfied that the start date of the complaint is 13 January 2020. On this basis, the time taken for the Council to issue its stage two decision letter to Mrs X was more than 65 working days.
69. I acknowledge the Council’s explanation that it was subject to a cyber-attack which affected its ability to access its computer systems, and that this affected the time taken to conduct the stage two investigation. However, I consider there was a delay in the Council providing its decision letter to Mrs X. The Council says the Independent Investigator reported the outcome of their investigation to Mrs X on 21 April 2020. However, the Council did not issue its decision letter until 13 May 2020; the decision letter provided Mrs X with the opportunity to request escalation of her complaint to stage three. Whilst I acknowledge the cyber-attack affected the Council’s ability to investigate the complaint, this was not the sole cause of delay.
70. I also acknowledge Mrs X’s and the Council’s comments regarding the delays at stage three. The period of 18 months to conclude the stage three process is excessive given the statutory timeframe of 30 working days. However, the Council is not solely responsible for the delay. The Council made efforts to arrange the meeting earlier but was unable to do so due to Mrs X’s health condition and requests for a face-to-face meeting. I acknowledge Mrs X’s explanation regarding this matter but find no fault by the Council for delays at stage three given its attempts to hold a virtual meeting. However, as previously stated, the evidence shows delay by the Council at stage two of the process, and I find this delay to be fault.

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Agreed action

71. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide a further apology to Mrs X for the delay in progressing her complaint;
2. Make a payment of £1,000 to Mrs X to recognise the uncertainty and loss of opportunity caused by the delay in providing respite care from February 2019 to January 2020. This amount is the same amount previously offered by the Council and is in line with our published guidance on remedies;
3. Make an additional payment of £1,000 for the benefit of Child Y to recognise the uncertainty and loss of opportunity caused by the delay in providing respite care from February 2019 to January 2020. This amount is in line with our published guidance on remedies;
4. Remind staff to adhere to the timeframes in the children’s statutory complaints process, and
5. Consider issuing notification/decision letters to parents to clarify provision agreed as part of Child in Need meetings.
72. The Council is required to provide us with evidence it has complied with the above recommendations.

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Final decision

73. I have found fault by the Council and the Council has agreed a remedy. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman