Summary: Mr B complained that the Council took away overnight respite provision for his daughter C without good reason. Following a SEND Tribunal, the Council reinstated the provision. We find the Council at fault for removing the provision. The Council has agreed to pay Mr B £1600 to recognise the injustice caused.

The complaint

1. Mr B complains that following a recent Special Educational Needs and Disability (SEND) Tribunal decision, the Council wrongly reduced, then removed overnight provision for his daughter (C), from January 2019. This caused distress to her and adversely affected the rest of the family. The Council also delayed in considering any alternative provision.

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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. 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

4. 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. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
5. 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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What I found

6. 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)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. 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.
9. 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). 

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 said it offers a residential service across all five of its residential special schools including the one C attends. The Council said it was an education provision but was not a statutory service and did not form part of C’s EHC plan. It also said it is not respite care and did not form part of the social care provision.
13. The Council said 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. The purpose of this policy is to enable a smooth transition to secondary school and allows new children to access the provision. The school had 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

14. 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’.
15. 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

16. 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.
17. 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

18. 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.
19. The final EHC plan issued in April 2019 removed the residential provision with no further explanation.
20. Mr B appealed to the Tribunal about the content of the EHC plan but did not include this issue. The case was due to be heard in November 2019.

First Ombudsman complaint March 2019

21. Mr B complained to the Ombudsman at this point.
22. We found fault, concluding that the status of the residential provision was unclear and contradictory and was possibly in the wrong section of the EHC Plan.
23. As Mr B already had an ongoing appeal against the education aspects of the EHC plan, he also had a right of appeal against the social care elements which would include the removal of the residential care from Section H1.
24. We recommended that Mr B should include the removal of the residential provision in his upcoming appeal, so the Tribunal could decide the correct status of the residential provision. We invited Mr B to come back to us once the appeal had been decided so we could consider whether any injustice has been caused by the lack of clarity over this issue.

Tribunal decision

25. The Tribunal found that C had an educational need for the overnight provision and ordered that this should be put back into her EHC plan. The tribunal was unable to consider the period before the appeal and so Mr B has complained again to us.

Agreed action

26. I considered C and the family were caused an injustice between January 2019 and 29 September 2019 when Mr B included the issue in his appeal. I calculated this was approximately six months of term time, with the first three months providing one night a week and the latter three with no provision at all.
27. I considered a suitable remedy would be £1600 calculated as follows:
• Three months of reduced provision @ £150 per month: £450
• Three months of no provision @ £300 per month: £900
• Time and trouble for Mr B and the family: £250.
28. Mr B considers this is insufficient. He says C missed out on 35 nights of provision and at current costs would amount to between £7,000 and £10,000. He says it is not even enough to pay for a week’s holiday at a disabled activity centre for the whole family and will not act as a deterrent for the Council.
29. I do not consider this level of remedy is appropriate: We aim to remedy personal injustice wherever our investigations reveal there has been fault. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
30. I consider £1600 is a reasonable remedy in these circumstances. It is in accordance with our guidance and recognises the injustice caused to C and Mr B.
31. The Council has agreed to this recommendation. I would ask it to pay this money within one month of this decision.

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Final decision

32. I consider the agreed remedy is a proportionate way of putting right the injustice and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman