Summary: The Council was at fault for how it considered Miss B’s request for support for her disabled son. It failed to reconsider its initial decision after Miss B said the evidence it had used was out of date and inaccurate. It has now agreed to reconsider Miss B’s request.

The complaint

1. The complainant, whom I refer to as Miss B, complains that the Council refused to provide social care to her son, C. Miss B says C is autistic and, at the time of the Council’s refusal, was out of school and needed support to access social activities in the community.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

5. I considered information from Miss B and the Council. I also considered the Council’s relevant law (including case law).
6. Miss 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 responsibilities

7. A ‘child in need’ is defined under the Children Act 1989 as a child who is unlikely to achieve or maintain a reasonable level of health or development, or whose health and development is likely to be significantly or further impaired, without the provision of services; or a child who is disabled. Children in need may be assessed under section 17 of the Act. (Working together to safeguard children 2018)
8. Case law has established that, although the Children Act contains no explicit duty for local authorities to assess the needs of disabled children, “It is implicit in section 17(1) that a local authority will take reasonable steps to assess”. (R (G) v Barnet LBC (2003))
9. Case law has also established that the threshold which must be met for councils to do social care assessments (in general, rather than specifically for disabled children) is low. (R v Bristol CC ex p Penfold (1997–98) 1 CCLR 315)
10. The Council’s website sets out that it has criteria which must be met before its ‘children with disabilities’ team will do a needs assessment of a child. These include that the child has a substantial and long-lasting physical or learning disability.

What happened

11. In September 2022, Miss B contacted the Council’s children with disabilities team. She asked for support to help C access social activities while he was out of education. She said he only had two weekly hours of online learning, so he needed to access social opportunities (as he would have done if he had been in school).
12. The Council wrote back to Miss B. It said it had reviewed C’s education, health and care (EHC) plan – which set out his special educational needs and what the Council would do to meet them – and he did not meet the Council’s assessment criteria. It said there was no evidence that C had a significant learning disability, as his EHC plan named a mainstream school and there was no additional social care funding attached to the plan.
13. However, the Council said Miss B had access to other support (including funding respite) arising from C’s benefits and his EHC plan.
14. Miss B was unhappy with this response, and told the Council that, although C’s EHC plan named a mainstream school, he had not been able to attend for almost four years. She said he had a significant learning disability which had got worse while he was out of school.
15. The Council did not change its decision. It told Miss B that, if she felt C’s EHC plan was out of date, she should ask the Council’s special educational needs team to update it.
16. The Council also said:

… from the evidence we have been able to access, it is not apparent that your son has a profound or severe learning disability, which is the group of children that we work with, along with children with a life limiting or threatening illness … Whilst [C] is not eligible for support from Children with Disabilities Team at this time, he may be eligible for [a more general] assessment by [children’s social care, which is] able to provide advice, support and guidance in all areas.

My findings

17. When the parent of a disabled child approaches their local council and asks it to provide support, the council must decide whether the child needs the support. If they do, then the Council must deliver it.
18. In making this decision, the Council should consider the child’s needs. Often this consideration will take the form of an assessment.
19. When Miss B first approached the Council, it considered C’s EHC plan and decided there was not enough evidence that he needed support from its children with disabilities team. It explained it decision. I have no reason to find fault with this.
20. However, Miss B then told the Council that the EHC plan was inaccurate and out of date, and that C’s needs were much higher than set out in the plan.
21. The Council told Miss B how to get the EHC plan updated. But it does not appear to have considered how this new information may have had a bearing on its refusal to assess C’s needs. It simply said the available evidence did not suggest he needed to be assessed. But it appeared, by that point, that the available evidence (the EHC plan) was inadequate.
22. I have seen no evidence that the Council reconsidered C’s needs or sought additional evidence on which to base its decision. This was fault by the Council.

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Agreed action

23. Within six weeks, the Council has agreed to reconsider Miss B’s request for support for C. In doing so, it will ensure it considers relevant and up-to-date evidence. It will also ensure it has due regard to the relevant law and guidance on assessing disabled children, some of which is summarised in this decision statement.
24. This reconsideration can be undertaken by the Council’s children with disabilities team or its more general children’s social work team, depending on which the Council considers more appropriate.
25. The Council has agreed to provide us with evidence it has done this.

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Final decision

26. The Council was at fault for how it considered Miss B’s request for support for C.

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Investigator's decision on behalf of the Ombudsman