Summary: There was delay by the Council in securing provision in a child in need plan under s.2 Chronically Sick and Disabled Person’s Act (CSDPA). This caused injustice to the child and their parent carers. The Council will apologise and make a symbolic payment for missed provision. The complaint is upheld.

The complaint

1. Mr X complains on behalf his child, Z, as well as his own behalf.
2. Z is disabled, has special educational needs and high-level care needs. Z has an Education, Health and Care (EHC) Plan maintained by the Council.
3. Z has a sibling, Y, who also has additional 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 and failed to make provision for identified needs since 2016, in particular failed to consider parents need for sleep;
• 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 also 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 consider 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 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 (CSDPA) 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 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 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 Z’s complaint only.
34. Z was identified by the Council as a child in need in 2015/6 and following a child in need assessment was awarded three hours of social care support from a personal assistant each week.
35. Z attended special schools with an EHC Plan until 2019 when Z’s school closed. Z was then educated via an Education Otherwise than at School (EOTAS) package. Z’s EHC Plan was not updated by the Council for several years.
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. Mr X appealed to the SEND Tribunal to amend Z’s EHC Plan in Summer 2023. Mr X’s grounds of appeal set out that Z had significant and multiple needs for support 24 hours per day, that Z had no health care plan, and Z’s social care needs had not been updated for five years. Mr X asked the Tribunal to make recommendations for sleep / overnight support as Z slept only for short periods, as well as support for carers and the family.
38. The Tribunal extended the appeal to look at social care matters.
39. Mr X had also brought an appeal for Y, Z’s sibling, which was resolved in late Spring 2023. As a result of this appeal the Council was asked by the Tribunal to complete an updated social care assessment as well as parent carer needs assessments for Mr and Mrs X. The Council decided to complete a child and family assessment covering Y and Z and parents. This included a section for parent carers.
40. 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.
41. Mr X disputed the outcome of the assessment. Mr X considered the social worker had strayed into consideration of 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.
42. Mr considered they were being treated differently because they had raised complaints and appeals.
43. The Council’s social worker recommended an unspecified number of short breaks for Z, consideration of continuing care health funding, and consideration of overnight support by an in-house short break team ‘if agreed by the Disability Resource Panel’.
44. Mr X obtained independent social worker (ISW) reports for both Y and Z in response to the Council’s assessment.
45. The ISW recommended Z have waking night support via an education package for 52 weeks per year and said Z needed an education package that extended beyond the normal school day.
46. The Council produced an updated Child in Need Plan for Z in early 2024. This increased social care support to six hours 2:1 support per week during term-time and twelve hours 2:1 support during school holidays, plus two nights of support per week.
47. The SEND Tribunal appeal was heard in late Spring 2024. By the time of the hearing, it was agreed between the parties that Z should attend an independent special school from September 2024. This was a day placement for 38 weeks. An issue in the appeal was whether Z required education that extended beyond the normal school day. The Council’s case was that Z needed social care provision outside the school day, and not an extended day education curriculum. The Tribunal noted Z’s social package in the 2024 Child in Need Plan had not yet been implemented which had left Mr and Mrs X ‘close to breaking point’. The social worker gave evidence they had recommended four nights per week support, but the Council’s panel had agreed two nights in late 2023.
48. The Tribunal decided Z needed education beyond the normal school day delivered for at least 50 weeks per year. The Tribunal decided night care was social care, not education, provision and was required seven nights per week.
49. In relation to other complaints Mr X had raised about the disputed social worker assessment, the ISW considered the previous social worker had undervalued the impact of Mr and Mrs X’s neurodivergence on communication and had failed to provide reasonable adjustments to them when completing the assessment.

Statutory complaint process

50. Mr X complained to the Council about social care provision in 2022.
51. 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 stages and included the ‘disputed’ 2023 assessment.
52. The 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 hourly rate had been uprated to take account of a rise in the minimum wage. The Council offered to hold a child in need meeting and to review the package if this was what Mr and Mrs X wanted.
53. 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 relied on the disputed social care assessment which found Mr and Mrs X had not fully engaged with the process. The Council said the likely outcome of the assessment was short breaks, but 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.
54. 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. The stage three report disagreed with the stage two findings and upheld further aspects of the complaint.
55. The Council’s response to the stage three report agreed to implement the following findings in acknowledgement of concerns raised by Mr X and the ISW:
• 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

56. Mr X complained to the Council about social care provision in 2022.
57. I have not investigated whether the Council was at fault in the way it assessed Z in 2023 and earlier. This is because Mr X appealed to the SEND Tribunal about social care provision in Summer 2023 raising the same issues. Mr X’s grounds of appeal referred to the care plan being five years out of date and an inaccurate description of current care needs. Mr X asked the Tribunal to make recommendations about social care under ‘provision duties in the CSDPA’. When someone has used an alternative legal remedy to the Tribunal about the same matter, the Ombudsman has no jurisdiction to also consider it (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 the fact a complainant will be left without a financial remedy for past loss does not mean we can investigate a complaint where a right of appeal 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).
58. I have not investigated the other elements of Mr X’s complaint 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 have been 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.
59. I have investigated whether there was delay in implementing the provision identified in the Council’s child in need plan after January 2024.

Fault

60. The Council decided in early 2024 that Z’s social care provision needed to be increased from three hours per week to six hours 2:1 support per week during term-time, to twelve hours 2:1 support during school holidays and include two nights support per week. This provision should have been put in place without delay. That there was an ongoing appeal to increase the provision further did not alter there was an obligation on the Council to secure the provision necessary under s.2 CSDPA. (Special educational needs and disability code of practice: 0 to 25 years, paragraph 9.137). Failure to do so was fault.

Injustice

61. Z and his family missed out on increased social care support in 2024.

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Agreed action

62. Within four weeks of my final decision:
• The Council will apologise for the delay in securing the social care provision identified in early 2024.
• The Council will pay Mr X £30 per week from February 2024 until the full six hours of daytime termtime provision was in place.
• The Council will pay Mr X £90 per week from February 2024 per school holiday week until the full twelve hours of support was in place.
• The Council will pay Mr X £150 per week from February 2024 until the two nights of waking night support was in place.
63. The Council will provide us with evidence it has complied with the above actions.

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Final decision

64. I have completed my investigation. There was delay by the Council in securing provision in a child in need plan under s.2 CSDPA. This caused injustice to Z and Z’s parents. I am satisfied the agreed actions set out above are a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman