Summary: Mr B complained the Council had failed to provide sufficient care for his child when moving from primary to secondary education and having to change existing providers because of this. When he made complaints the Council did not address them properly. There is evidence of fault and the Council has agreed to make a payment for time and trouble and distress and to ensure Mr B’s child has not lost any services as a result of the change. The Council has also agreed to change its procedures.

The complaint

1. The complainant, whom I shall call Mr B, complained the Council had failed to ensure his child, C, had a like-for-like service when changing care providers because of transition to secondary school. When he made complaints, the Council failed to address them properly. Mr B also complained the Council had failed to address his data protection act request for information held on C.

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What I have investigated

2. I have investigated the first part of Mr B’s complaint but not the second. I explain why I have not investigated the second part at the end of this statement.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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)
7. 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

8. I considered the information submitted by Mr B with his complaint and spoke to him on the telephone. I also made enquiries of the Council and assessed its response. I sent Mr B and the Council a copy of my draft decision and took comments they made into account before issuing a decision.

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What I found

9. C receives support from the Council outside school, as a child in need. The main support was from an after school and holiday club provided by the Council. Once C attended secondary school, from September 2018, the providers of the support needed to change. The provision C received at primary school was (in March 2018) 156 hours per year or 3 hours per week from Provider 1 and 13 holiday sessions and 20 after school sessions from Provider 2.
10. The Council told Mr B providers would not accept a referral in advance. Mr B was concerned the Council was taking no action. He escalated his complaint on 13 March 2018. A response was received on 24 April stating the complaint was still at Stage 1 of the Council’s procedure. He made a further complaint on 13 May 2018 but no response was received. This is fault. The Council should apologise to Mr B for the time and trouble it caused him thinking he had to chase the Council to put updated provision in place. Mr B had no choice but to come to the Ombudsman to have a formal resolution to his complaint. The Council should ensure it can follow statutory guidance (‘Getting the best from complaints’, 2007) when dealing with complaints about children’s matters. It should review its current procedures and put in place checks to make sure complaints are progressed appropriately. It should tell me what changes it has made within four months of the date of my decision.
11. The updated support plan, which was meant to be in place once C started at the new school in September, is dated 9 August. This shows Provider 1 would stop its involvement in February 2019 and another service would be supplying 3 hours per week from then. This is a like-for-like exchange. However, the August letter says that, unlike Provider 1 and 2, this new provider was ‘to be identified’. Although Provider 1’s service was not coming to an end until February, Mr B had an expectation the Council would tell him how the provision was going to be delivered and this was not the case. However, as the August letter was some time in advance of the change, I do not find the Council at fault. The letter acknowledges some different provision needs to be sourced and anticipates the same level of service.
12. Provider 2 would only be providing a service until the end of August and the Council identified Provider 3 to take over. The letter gives a name for Provider 3 but says ‘sessions (take place) throughout the year – to be confirmed with provider’. Mr B wanted the same level of service as Provider 2 had given and there is no evidence this would, or would not, be the same. Provider 2 had not contacted Mr B. This was less than a month before Provider 2 would stop its service. This is fault. It caused distress for Mr B and C who wanted to know what was being provided at the time when the family was already having to manage C’s transition to secondary school.
13. In February 2019, the Council told Mr B that it would ask Provider 4 ‘for holiday support’. Given Provider 2 had offered holiday support, and the idea seemed to have been to replace Provider 2 with Provider 3, Mr B had a right to expect the Council would have identified holiday support before then. This is fault. If C missed a service at Christmas 2018, the Council should allow this time to be made up. Also in that letter, the Council identifies Provider 5 for ’39 term time sessions’. On the balance of probabilities, Provider 5 may also have been scheduled to replace Provider 2/3. The Council has not provided me with evidence as to why Provider 3 had to be replaced, when it stopped providing a service (if it did provide a service) or why its replacement was identified so late. This is fault and it caused Mr B and C distress. The Council should apologise and make a payment for distress.
14. The letter goes on to offer direct payments for three hours each week. This may have replaced Provider 1’s service although as Provider 1 was ceasing its service two days after the date of the letter, this was extremely late notice. The lack of clarity as to what is being provided, when and by whom is fault. The Council should conduct an audit of the service offered to check C did not miss any support; Mr B believes the support available to C ‘has been reduced without any rationale for doing so’. Support that was missed should be made up and the Council should confirm that C has not lost out. The Council should apologise for the late notice given to Mr B, as identified in the February letter, and make a payment for distress. The Council should consider changing its procedures so it can make more defined offers to parents in good time before existing services end.
15. Mr B was told the family now had no allocated social worker. As C has social worker support, as a child in need, the family ought to have one. This is fault by the Council although there is no injustice to Mr B as he can contact the duty team at the Council if he needs specific help.

Agreed action

16. For the Council to apologise for the fault outlined in this statement within a month of the date of my decision.
17. For the Council to make a payment to Mr B of £300 for distress and £200 for time and trouble within two months of the date of my decision.
18. For the Council conduct an audit of the service offered to check C did not miss any support he should have had and to confirm he has a like-for-like service. The Council will make up any provision lost. The Council will do this at the Annual Review of C’s Education, Health and Care Plan (EHCP) (or within three months if sooner). It has told me it will continue to review the short break support package on an annual basis, and that the support package will be discussed at the EHCP Annual Review. It is happy for the family to contact the Council at any stage if they feel the support package is not working or if they wish to make changes to it. Plans to make up any lost support should be prepared within two months of this audit.
19. For the Council to ensure statutory complaints are progressed appropriately. It will tell me what changes it has made within four months of the date of my decision.
20. For the Council to consider changing its procedures so it can make more defined offers to parents in good time before existing services end. It is asked to tell me what changes it will make within four months of the date of my decision.

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Final decision

21. I have reached a finding of fault leading to injustice. The Council has agreed to my recommendations to remedy that injustice.

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Parts of the complaint that I did not investigate

22. Mr B made a Subject Access Request to the multi-agency safeguarding team (MASH) wanting details of the information held on C. This was not forthcoming. Mr B will now approach the Office of the Information Commissioner as this is the agency best placed to deal with such issues.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman