Summary: There was fault in the way a social care assessment was conducted in 2023, this led to delay in putting provision in place. Parents missed out on respite and Y missed out on social activities outside the home. The Council will make a symbolic payment to acknowledge the missed provision.

The complaint

1. Mr X complains on his own behalf and on behalf of his child, Y.
2. Y is disabled, has special educational needs and is currently educated otherwise than at school (EOTAS).
3. Y has a sibling, Z, who is also disabled and has very high care needs.
4. Mr X complains the Council:
• Failed to follow law and evidence in carrying out a social care assessment in Summer 2023;
• Failed to adequately or lawfully assess needs since 2016;
• Failed to provide support for the children as individuals, the parents as carers and the family as a unit;
• Failed to pay a lawful rate to secure provision;
• Treated the family differently in response to the family raising complaints;
• Failed to work jointly across education and social care and complete annual reviews in a timely manner;
• Failed to adequately investigate the complaint.

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The Ombudsman’s role and powers

5. 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)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement. The SEND Tribunal can extend appeals to consider health and social care needs and provision for a child with an EHC Plan.
9. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

10. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.
11. 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)

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How I considered this complaint

12. I have considered information provided by Mr X and the Council including:
• Complaint documents at stages 1-3 of the statutory complaint procedure
• EHC plans
• Social care assessment
• Correspondence
• Tribunal documents.
13. I have spoken to Mr X by telephone.
14. I have considered relevant law and guidance.
15. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
16. 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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What I found

Relevant law and guidance

17. 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.
18. 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.
19. 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.

20. The expectation of statutory guidance ‘Working Together to Safeguard Children’ is that an assessment which identifies significant needs will generally lead to the provision of services, but it 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.
21. 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.
22. Assessments should take account of the needs of the whole family. While some services may be offered directly to the disabled child, services may also be offered under section 17 to parents or siblings.
23. The Children Act 1989 (Schedule 2 paragraph 96)(1)(c)) and Breaks for Carers of Disabled Children Regulations 2011 requires councils to provide a range of services designed to assist family carers of disabled children to continue to provide care, or to do so more effectively, by giving them breaks from caring. These services must include a range of daytime care, overnight care and leisure activities. This range of services must be set out in a ‘short breaks statement’ and include details of any eligibility criteria.
24. The Children Act 1989 (as amended by the Children and Families Act 2014) places specific duties on councils to assess the needs of carers with parental responsibility for disabled children as well as young carers. Councils have an obligation to assess parent carers on the ‘appearance of need’ (Children Act 1989, section 17ZD/E), or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.
25. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 

26. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child or young person’s social care needs.

27. Where the council decides it is necessary for support to be provided under section 2 of the Chronically Sick and Disabled Persons Act 1970 it must include this in Section H1 of the EHC Plan. Support provided by Early Help or under section 17 of the Children Act 1989 (child in need) should be included in Section H2 of the EHC Plan. 

28. There is a right of appeal to the SEND Tribunal against:

• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment.

29. If a parent disagrees with the social care support set out in the EHC Plan they can make a complaint to the council. Alternatively, if they are going to appeal to the Tribunal about other parts of the EHC Plan, they can ask the Tribunal to consider any disagreement as part of an ‘extended appeal’. The tribunal can make recommendations on the social care elements of the EHC Plan, but the recommendations cannot be legally enforced. The Ombudsman however expects councils to follow Tribunal recommendations for social care.

30. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews.

Key events

31. The following is a summary of key events. It does not include everything that happened.
32. Mr and Mrs X are parent carers for Y and Z.
33. This decision statement relates to my investigation of Y’s complaint only.
34. Y has had an EHC Plan maintained by the Council for several years. Y has received Education otherwise than at School (EOTAS) for the last few years.
35. Y was identified by the Council as a child in need in 2015/6 and after an assessment was awarded three hours of support from a personal assistant each week.
36. Mr X complained to the Council in Summer 2022 the Council had failed to keep Children in Need plans up to date for both Y and Z since 2016. Mr X asked the Council to carry out a child in need review as soon as possible and provide a lawful, market rate for care provision. Mr X told the Council there was insufficient support for the children as individuals, the parents as carers and the family as a unit. The complaint progressed to stage two and three of the statutory complaint process, as detailed below.
37. In early 2023 Mr X gained a right of appeal when Y’s EHC Plan was updated, which he used. The Tribunal hearing was heard in Summer 2023.
38. I have seen Mr X’s grounds of appeal to the SEND Tribunal and a copy of the Tribunal decision issued in Summer 2023.
39. Mr X’s grounds of appeal refer to the Council’s failure to carry out a child in need or social worker assessment in the previous three years and states his disagreement with the provision of three hours of social care support listed on the EHC Plan. Mr X asked the SEND Tribunal to make recommendations about social care as part of an extended appeal. Mr X said Y was entitled to have “as close to a normal life as possible”. Mr X believed said Y should have a package of social care support for periods Y was not following the EOTAS curriculum.
40. The Tribunal did extend the appeal to consider social care. The Tribunal amended the wording of Section D (social care needs) to reflect Y’s difficulties accessing the community and leisure activities and to reflect the combined pressure on the family of having two disabled children. The Tribunal noted it was not provided with up-to-date social care evidence for Y and while the Council said an assessment was underway, this was already later than timescales in statutory guidance allowed. The Tribunal was concerned the three hours per week current support was ‘potentially insufficient’ but it did not have enough evidence to make specific recommendations. The Tribunal recommended a full child and family assessment was completed as a matter of urgency to include consideration of Y’s needs at weekends and during school holidays and any need for overnight respite, and that parent carer needs assessments should now be conducted.
41. A child and family assessment covering Y and Z and parents was carried out in Summer 2023 and completed in early Autumn, four months after the Tribunal decision. This included a section for parent carers.
42. There was disagreement between the social worker and family about the best way of obtaining information from Y and Z. Mr and Mrs X wanted this to take place online, but the social worker said several visits to observe and obtain Y and Z’s views with the support of the family support worker (who had worked with them for several years) was required.
43. Mr X disputed the outcome of the assessment to keep provision at three hours per week per child. Mr X considered the social worker had strayed into child protection issues, making a finding of neglect, when this was not indicated. Mr X complained the social worker suggested parents had obstructed the assessment, were inflexible or confused about what services they wanted.
44. Mr X considered they were being treated differently because they had raised complaints and appeals.
45. Mr and Mrs X decided to obtain an independent social worker (ISW) report at their own expense in Autumn 2023 for Y. This identified education and social care needs, noting Y was only receiving three hours per week of the EOTAS package. The ISW considered the previous social worker had undervalued the impact of Mr and Mrs X’s neurodivergence when communicating with them and had failed to provide reasonable adjustments when completing the assessment. The ISW noted Y’s EHC Plan had not been updated for several years and the Council was not delivering all the special educational provision in the Plan, so Mr and Mrs X’s loss of trust was understandable. The ISW also identified Mr and Mrs X had not received the parent carer needs assessment the SEND Tribunal had recommended.
46. The ISW recommended Y receive eight hours per week personal assistant support to attend activities outside the family home during term-time and sixteen hours per week in school holidays. The ISW also recommended a higher hourly rate so Mr and Mrs X could employ a suitably experienced person.
47. I have seen an amended child in need plan dated early in 2024 which indicates the Council reviewed the previous assessment following receipt of the ISW report. The Council decided Y should receive six hours of support per week in term-time and fourteen hours per week in school holidays.

Statutory complaint process

48. The statutory children’s complaint process took place alongside the above events, although the complaint issues changed, due to the time taken to complete the complaint, and, to include the disputed Summer 2023 assessment.
49. The Council’s stage one response was provided in Summer 2022. This upheld that social care reviews had not taken place as they should but did not uphold the amount of provision (three hours per child per week) was insufficient. It found the direct payment hourly rate had been uprated to take account of a rise in the minimum wage, but Y’s provision was made via an agency, although the family was offered direct payments. The Council offered to hold a child in need review. While a visit was arranged in Autumn 2022, it is apparent there were difficulties between the family and the Council in completing this which led to further complaint issues being raised.
50. The stage two response was provided late in mid-2023 (the Ombudsman investigated this delay in a separate complaint). The Council accepted there had been no timeframe set to complete the child in need review agreed at stage one. It agreed to complete the review as soon as possible. The stage two decision letter stated ‘the local authority acknowledges that [Y and Z] need more support but that needs to be the outcome of a comprehensive assessment of their needs which the family will need to contribute to and be engaged with’. The Council said the likely outcome of the assessment was short breaks, but it said parents had not accepted these previously. I understand that Mr and Mrs X had not accepted direct payments on the basis the rate was insufficient, and they wished to use an agency. The Council said without a comprehensive assessment it could not say if provision had been lost due to delays. The stage two response also addressed other complaint issues raised, including whether professional standards were met.
51. The stage three panel report was completed in Winter 2023. This identified faults at stage one and two, while also acknowledging events had moved on (including by now the SEND appeal and Tribunal order). The stage three disagreed with the stage two findings.
52. The Council’s response to the stage three report agreed to implement the following findings in acknowledgment of the concerns parents and the ISW had raised:
• Staff training with an emphasis on supporting neurodiverse parents.
• Further work to assess needs and identify solutions to meet these (via education or social care).
• The Council would work with the family to address concerns about ‘parental blame’ and not use the disputed Summer 2023 social worker assessment as part of the presentation to the Resources Panel. The Council noted Mr and Mrs X and the new social worker allocated were working well together.
• Work to identify information missing from Y and Z’s files, refresher training on keeping files up to date, and better information sharing between Education and Social Care.
• Monitoring of remedies agreed during complaints to ensure they are completed.
• Further apologies for faults identified at stage three.

Analysis

What I have and have not investigated

53. Mr X raised his complaint with the Council in 2022. I have investigated Mr X’s complaints about social care provision for Y from June 2023 only, when the SEND Tribunal issued a final order. I cannot investigate the period before June 2023 because Mr and Mrs X raised the same concerns with the Tribunal that he has raised with the Ombudsman. The grounds of appeal referenced Y’s care plan not being updated for the previous three years and concerns about the amount of provision. The Tribunal extended the appeal to consider social care matters and made social care recommendations. As Mr X raised the same matters with the Tribunal, and it provided a remedy, these matters are no longer open to the Ombudsman to investigate.
54. The Ombudsman cannot decide matters which have already, directly or indirectly, been adjudicated on by a tribunal. (Local Government Act 1974, section 26(6)(a), as amended, R v Local Commissioner for Administration for the North and East of England ex parte Bradford Metropolitan City Council). The courts have found that the fact a complainant will be left without a financial remedy for past loss does not mean we can investigate a complaint where an alternative legal remedy has been used. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). It was not the intention of Parliament in the Local Government Act 1974 to create an alternative, let alone an additional right by way of complaint to the Ombudsman, when a party has ventilated their grievance via an alternative legal route (R v Commissioner for Local Administration ex parte PH).
55. I have not investigated other elements of Mr and Mrs X’s complaints about social care. We do not usually reinvestigate where there has been a full statutory complaint procedure to stage three. Flaws in the stage two investigation were identified at stage three and recommendations made. I have not seen evidence that would call the stage three findings into question. I have not seen evidence of delay in the Council completing the stage three recommendations for Y; a new child in need plan was issued within a month of the stage three outcome.

Fault

56. For the reasons given above I can only consider the Council’s actions after the Tribunal order in Summer 2023. The previous period is outside of our jurisdiction because social care matters were included in the SEND appeal.
57. The Council identified fault in the stage one and two complaint processes and in the Summer 2023 social care assessment. In particular, the social care assessment failed to consider the needs of parent carers.
58. There was delay in completing the Summer 2023 assessment, this was overdue at the time of the appeal and then took an additional four months. This additional delay was fault.
59. The ‘disputed’ assessment was reviewed as a complaint action and this resulted in an amended child in need plan for Y in early 2024.
60. I find that, ‘but for’ the fault identified in the stage three investigation and the delay, the needs identified in early 2024 would have been identified in Summer 2023. Mr and Mrs X and Y missed out on the additional support added to the child in need plan in 2024 for this period. Y’s needs did not change during this time.

Injustice

61. Y missed out on an additional three hours support per week in termtime and eleven hours in school holidays for a period of six months (Summer 2023 to early 2024).

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Agreed action

Within four weeks of my final decision

62. The Council has already provided apologies as part of its response to the stage three investigation. I also do not consider further service improvements are required than those already agreed at stage three.
63. The Council will pay Mr X:
• £30 per week for lost term-time provision from September 2023 to January 2024.
• £110 per week for lost holiday provision from September 2023 to January 2024.
64. The Council will provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation. There was fault in the way a social care assessment was conducted in 2023, this led to delay in putting provision in place. This meant parents missed out on respite and Y on social activities outside the home. I am satisfied the agreed actions set out above are a satisfactory remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman