Summary: The Special Educational Needs and Disability Tribunal (SENDIST) recommended the Council consider a personal budget to meet Ms X’s social care needs. Ms X complained the Council failed to follow that recommendation. We find the Council did consider the recommendation of the Tribunal. There was some fault because the Council failed to document its discussions about the recommendation. However, that fault did not cause injustice to Ms X because the Council fully set out the reasons for its decision in a letter. The Council has agreed to improve its record-keeping.

The complaint

1. The complainant, whom I shall call Ms X, complained about the Council’s decision not to follow a recommendation made by the Special Educational Needs and Disability Tribunal (SENDIST) about her social care needs. Ms X says that as result she is socially isolated and cannot go to see her friends.

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The Ombudsman’s role and powers

2. 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)
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 considered all the information provided by Ms X about her complaint. I made written enquires of the Council and took account of the evidence it provided in response. I have considered relevant statutory guidance. (SEND Tribunal: single route of redress national trial)
5. Ms X and the Council had an opportunity to comment on my draft decision and I considered all comments received before making a final decision.

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What I found

Legal and administrative information

6. SENDIST is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal)
7. Parents and young people can appeal to SENDIST about decisions concerning Education, Health and Care (EHC) needs assessments and plans. Under a trial scheme the appeal rights which apply to special educational needs and provision sections and the placement section of EHC plans have been extended to include health and social care needs. However, unlike the binding decisions the Tribunal can make in relation to special educational provision, its powers in respect of health and social care aspects are limited in that it can only make non-binding recommendations. It may recommend that health and social care needs and/or provision are specified in the plan, or it may recommend amendment to the plan in these areas.

What happened in this case

8. Ms X appealed to SENDIST about the content of her EHC plan (the Plan). Part of her appeal was about section H of the Plan, which relates to social care provision. The Plan did not specify any social care provision. Ms X wanted the Plan to deal with her social isolation.
9. A social worker was assigned, and an assessment of Ms X's social care needs was completed. Ms X had the opportunity to comment and some amendments were made. The decision set out in the assessment was that Ms X did not require intervention from Children’s Services at this time, as provision could be made to address her social isolation via Early Help. The assessment noted that support was available through a local youth hub, and that this could be provided virtually where appropriate, with integration to physical groups when possible. Although Ms X expressed a wish to earn to drive and requested funding for this, the Council’s view was that this was not a necessary provision to meet identified social care needs.
10. Ms X’s appeal to SENDIST was heard in July 2020, and a few days later the Council received the Tribunal’s decision. It noted that the up-to-date social care assessment, with annotations made by Ms X’s mother, had been taken into account. It noted the concerns about Ms X’s social isolation and the views of Children’s Services that needs could be met through Early Help provision. The Tribunal had heard oral evidence from Ms X’s mother, who had set out the view that being able to drive would help her daughter achieve social interaction and without the need for anxiety caused by using public transport.
11. The Tribunal’s decision included the following:
    “We make no specific recommendation in respect of driving lessons, but we recommend that a personal budget is explored by the LA with a view to supporting [Ms X]’s mobility and independence”.
12. On 26 August, the Council wrote to Ms X’s parents, noting SENDIST has powers to make non-binding recommendations on health and social care aspects of EHC plans. It noted the recommendation that had been made that a personal budget be explored. The Council said it had considered the recommendation made by SENDIST but had ‘decided not to follow it’. It set out the reasons for this as follows:

• Ms X would be starting college in September and this would address her social isolation.
• Intervention already offered by the Early Help Team, along with attending college, would have addressed Ms X’s social needs (one-to-one support had been offered to support Ms X to attend virtual events available at the youth hub and in the community and attend physical groups when available and to support her preparing for and accessing college independently).
• Ms X already received Disability Living Allowance (DLA) which was being used like a personal budget for ‘travelling and make up’. DLA would be changing to Personal Independence Payment (PIP) and part of that would be for needs associated with aiding independence. A further personal budget was not deemed to be needed or justified.
• An offer of professional support had been offered and turned down but remained available.

13. Later, on 24 September, the Council wrote again, this time to Ms X. This letter clarified that in fact it had followed the recommendation of the Tribunal, because it had explored the idea of a personal budget. However, having done so, it had decided not to provide a personal budget for the reasons set out in the letter of 26 August.

Analysis

14. The statutory guidance, referred to at paragraph 4 above, sets out that while any recommendations made by the Tribunal on social care elements of an EHC plan are non-binding and there is no requirement to follow them, a Council is generally expected to do so. They are recommendations made by a specialist Tribunal and should not be ignored or rejected without careful consideration. Any reasons for not taking them forward must be explained and set out in writing, with sufficiently detailed reasons for that decision.
15. In this case, the Council says that discussions did take place between relevant managers to consider the recommendation made by the Tribunal. There should be a record of these discussions, but the Council has been unable to provide any written evidence and that is fault. However, that fault did not cause injustice to Ms X. This is because the Council’s letter following its consideration of the recommendation clearly set out the reasons why it had decided a personal budget would not be provided, which shows the matter had been considered as the Tribunal had recommended.
16. For the avoidance of doubt, the decision not to award a personal budget was one the Council was entitled to make and there is no evidence that the decision-making was affected by fault.

Agreed action

17. Ms X was not caused personal injustice by the fault in record-keeping identified in this case. However, as a service improvement I recommended that within four weeks of the date of the decision on this complaint the Council reminds relevant staff of the importance of record keeping to evidence consideration of non-binding recommendations made by SENDIST.
18. The Council agreed to my recommendation.

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Final decision

19. I have completed my investigation on the basis set out above.
20. 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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Investigator's decision on behalf of the Ombudsman