Summary: Mr B complained about the removal of residential provision at school for his daughter, C, who has special educational needs. We find the Council’s position on this provision is unclear and contradictory. We consider Mr B should include the issue in his upcoming appeal to the Tribunal.

The complaint

1. Mr B complains that Staffordshire County Council (the Council) has cut residential provision for his daughter, C, without adequate justification or explanation.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. A child with special educational needs 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
6. From April 2018, parents and young people who are dissatisfied with the sections of the plan relating to health and social care, and who have not been able to resolve their disagreement locally, can take their appeal to the SEND Tribunal. The appeal must also involve an appeal about the education parts of the EHC plan (Sections B, F or I). 
7. 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)

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How I considered this complaint

8. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

9. This law requires a Council to provide certain welfare services to disabled people. In respect of meeting the needs of disabled children, a Council is required to provide practical assistance within the home, with travelling, with recreational activities, with holidays. The list does not include residential stays.

What happened

10. Mr B’s daughter C is disabled and needs a high level of care. She was attending a special school which also offered a residential service for some pupils. In November 2013 C started a residential placement initially for one night a week and from September 2015 it increased to two nights per week.
11. The purpose of the placement was to:
• facilitate social relationships;
• develop self-help and independence skills;
• extend C’s ability to listen and concentrate;
• develop early learning skills;
• extend independent and exploratory play;
• improve balance and physical skills.
12. The Council says it offers a residential service across all five of its residential special schools including the one C attends. The Council says it is an education provision but is not a statutory service and does not form part of C’s EHC plan. It also says it is not respite care and does not form part of the social care provision.
13. The Council says it has been a requirement of the Residential Service since May 2015 to reduce the residential provision of children entering year 6 to ensure all residential provision is terminated by the end of the spring term of year 6, with the exception of all age provision or in exceptional circumstances.
14. The Council’s contract with the school states:

“Exit transition in year 6 –children/young people entering NCY6 should have their residential provision gradually reduced to ensure all residential provision is terminated by the end of the pupil’s spring term of NCY6, with the exception of all age provision, or in exceptional circumstances, which must be notified to The Council and highlighted in their penultimate residential review. The decision as to a NCY 6 child/young person continuing to access residential education provision will be at the sole discretion of The Council”.

15. The Council says the purpose of this policy is to enable a smooth transition to secondary school and allows new children to access the provision. The school has sent a residential agreement to parents on an annual basis since 2016, which outlines the reduction in residential provision in year 6.

EHC plan 26 March 2018

16. Section D of this plan is headed ‘My social care needs which relate to my special educational needs or to a disability’. Under the heading ‘Summary of needs’ it says that ‘No social care needs were identified as part of the assessment’.
17. Section H1 is headed ‘My social care provision which must be made for me under section 2 of the Chronically Sick and Disabled Person Act 1970’. Under this heading and in order to meet the outcome that C should have access to social opportunities, section E details the required provision: this included two nights a week at the school in addition to direct payments.

Placement Review October 2018

18. Following a placement review, the Council notified Mr B in October 2018 of the planned reduction in residential provision to one night a week after Christmas and ceasing entirely from Easter 2019. Mr B sent back the signed document noting his disagreement with the reduction.
19. He also queried the reduction directly with the Council. It repeated its view that it was a requirement of the Residential Service to ensure smooth transition to the next school. The Council confirmed that according to the reports, C was making good progress and there were no exceptional circumstances to warrant continuing the residential placement.

Annual review of EHC plan November 2018

20. The annual review of the EHC plan in November 2018 proposed taking out the residential provision but did not detail any change in C’s needs. C’s social worker provided a letter dated 20 November 2018 requesting the provision of two nights respite care.
21. The final EHC plan issued in April 2019 removed the residential provision with no further explanation.
22. Mr B appealed to the Tribunal about the content of the EHC plan but did not include this issue. The case is due to be heard in November 2019.

Complaint

23. Mr B complained about the reduction. The Council sent a complaint response in December 2018 confirming the reasons for the reduction. Mr B complained again and the Council sent its final response in February 2019, maintaining its view that the provision would end at Easter.
24. Mr B complained to the Ombudsman.

New social care assessment

25. In April 2019 the Council reviewed C’s social care provision. The family had requested respite care due to the detrimental impact on C and the family of the cessation of the residential provision at school. The social worker recommended some overnight stays for C but noted they would not be as frequent as those provided by the school.
26. In August 2019 the Panel agreed 21 nights respite care per annum.

Analysis

27. The status of the residential provision is unclear and contradictory. This is fault. The Council says it was education provision but was not part of the EHC plan. Yet it appeared in the EHC plan in March 2018 in H1: social care provision under the CSDP 1970. If it was education provision, which I consider is appropriate, then it should not have been placed in section H1 but rather in section F (special educational needs provision).
28. A further possible fault is the fact that residential provision does not appear in the list of welfare services a Council can provide under the CSDP Act, which adds weight to my view it was placed in the wrong section of the EHC plan.
29. As Mr B already has an ongoing appeal against the education aspects of the EHC plan, he also has a right of appeal against the social care elements which would include the removal of the residential care from Section H1.
30. In order to resolve this problem, I consider Mr B should include the removal of the residential provision in his upcoming appeal, so the Tribunal can decide the correct status of this provision. Mr B can come back to us once the appeal has been decided so we can consider whether any injustice has been caused by the lack of clarity over this issue.
31. I also consider the Council took too long (four months) to consider the social care request for respite care. Again once the SEND appeal is concluded Mr B can come back to us to consider the injustice arising from the delay.

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Final decision

32. I have discontinued my investigation to allow Mr B to include the residential provision in his appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman