Summary: The Council was at fault for not giving appropriate information about social care assessments outside its Children with Disabilities team, which resulted in a delay in assessing Y’s social care needs and in assessing the needs of her mother, Mrs X, as a carer. In the absence of assessments, it is uncertain whether they have missed out on support they were entitled to. It should apologise, pay Mrs X £300 for the injustice caused, and consider the information it provides to families in the same situation.

The complaint

1. Mrs X complained the Council had failed to offer social care support for her adopted daughter, Y. Y is, a former looked-after child, who has physical disabilities and moderate learning difficulties, as well as suffering developmental trauma as a result of her early life experiences.
2. Mrs X said she spent many hours battling with the Council to secure the right support for her daughter, which has led to negative effect on her own health and wellbeing. In addition, she says Y has missed out on support, which means she has not been able to access activities other children of her age enjoy.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) This means we would not usually investigate events more than 12 months from the date the person complained to us.
6. In this case, Mrs X complained to the Council about social care support in May 2021 and to us in June 2021. However, she had previously complained about various aspects of Y’s special educational needs support and an investigation of those concerns covered the period from February 2019. Since councils should consider whether a child needs support from children’s social care as part of the Education Health and Care (EHC) plan process, I have exercised discretion to extend my investigation back to consider the issuing of Y’s EHC plan in February 2019 and events since then.
7. 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.
8. 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

9. I considered:
• the information provided by Mrs X and the Council;
• relevant law and guidance, as set out below; and
• our guidance on remedies.
10. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Education Health and Care Plans

11. A child with special educational needs (SEN) 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.
12. In developing the EHC plan, councils are required to consult with appropriate professionals, including education, health and social care.
13. EHC plans should be reviewed at least annually.

Chronically Sick and Disabled Persons Act 1970

14. Section 2 of this Act sets out the services councils must make available to parents of disabled children. This includes short breaks and respite care. Short breaks can take many forms, including access to play schemes. Where a short break cannot take place at the child or young person’s home or in a community-based setting until the 1970 Act, the council can provide services under section 17 of the Children Act 1989.

Children Act 1989

15. Section 17 of this Act says a child or young person is “in need” if they are disabled. Councils have a duty to assess the need and provide appropriate services to meet the assessed needs. The support needed will be set out in a child in need plan and reviewed regularly.

Childcare Act 2006

16. Councils are under a duty to secure “so far as reasonably practical” sufficient childcare to meet the needs of parents of disabled children in their area who require childcare in order to work.

Early Help

17. Early Help is support the council gives to children and families where they have additional needs that cannot be met by universal services. Universal services are those available to everyone, such as education and health. The purpose is to put in support at an early stage to prevent needs becoming so great they require specialist support.
18. The court has said Early Help may be provided for disabled children with lower level needs (R(L and P) v Warwickshire County Council [2015] EWHC 203 (Admin))

Direct payments

19. Where there is a need for care and support for disabled children and young adults, the Council can provide or commission services to provide the support or it can make direct payments to the family so they can arrange care and support themselves.

Carer’s Assessment

20. Section 17ZD of the Children Act 1989 says a council must assess whether a parent carer needs support if:
• it appears the parent carer may have needs for support, or
• it receives a request from the parent carer to assess their need for support; and
• the council is satisfied the disabled child and their family are persons for whom they may arrange or provide services under section 17.

This Council’s Integrated access and referral team (iART)

21. The Council assesses the level of need for children’s social care in line with the following levels:
• universal services – services available to all;
• universal plus – where the child or family is assessed as having one additional need;
• partnership plus – where the child and family need a “Team Around the Family” (TAF) because they have two or more unmet needs. If the TAF is not working, a referral to Early Help and Prevention should be considered;
• statutory social work – includes children in need and children at significant risk of harm. At this stage, the Council completes a single assessment.
22. The Council’s website says the role of iART is as follows:
• to receive evidence based referrals for children in need of social work led intervention because there is a risk of significant harm to a child;
• to provide advice on request for cases at Partnership Plus on the continuum of need where a TAF is not achieving outcomes or escalating to Early Help and Prevention is being considered; and
• to receive and respond to statutory notifications.

This Council’s Children with Disabilities (CWD) team

23. The following criteria is used to determine whether a child should receive specialised support through the CWD team:
24. Where the presenting issue is the child or young person’s disability or symptoms / behaviours from the disability that are impacting on daily life or is increasing risk of harm to; the family, siblings or child themselves, and the child has an NHS diagnosis of;

• Children/young people with severe learning disabilities;
• Children/young people with multiple or severe disability;
• Children/young people with severe communication disability;
• Children/young people with global development delay;
• Children/young people with severe sensory impairment;
• Children/young people with complex physical disability.

25. Children/young people with a diagnosis of Autistic Spectrum Condition with an associated learning disability and where the condition severely affects day to day functioning will receive an assessment and may receive further services if the child/young person is assessed as requiring additional support.
26. The criteria document specifically states that children or young people diagnosed with Asperger’s or ADHD do not meet the criteria for the CWD team.

What happened

Background

27. Y was placed for adoption with Mrs X from another council area in 2016. The other council, Council B, had a legal duty to provide post adoption support for three years after the adoption. Council B requested a transfer of responsibility for post adoption support transferred to this Council in October 2020. The transfer process was completed in early February 2021.
28. Mrs X asked this Council to assess Y’s special educational needs and it issued a final EHC plan in 2017. By early 2019, Y’s behaviour was becoming more challenging. Dr Z, an adoption expert, observed her in school (school 1), and provided a report setting out strategies for school 1 to use to manage her trauma-related behaviours in March 2019. There were several draft amended ECH plans issued in which these strategies were set out but no final amended plan until April 2020.
29. At the annual review for Y’s EHC plan in February 2020, Mrs X suggested Y needed a special school but the Council disagreed. In May 2020 it agreed to carry out a reassessment of Y’s SEN, following which it issued a final amended EHC plan, naming a special school, school 2. Y started attended school 2 in September 2020 but unfortunately that placement did not work out and she moved to school 3 in February 2021.
30. We have investigated separately Mrs X’s concerns about the EHC plan process and the failure to provide all the support in the plans. This complaint concerns a lack of social care support.

Section H – EHC plans 2019 and 2020

31. Y’s EHC plan dated February 2019 stated: “no social care outcomes have been identified”. Council records show there was a social care assessment in February 2018 following a disclosure by Y of historic abuse when she lived with her birth family and a further assessment in April 2019, which concluded social care support was not needed.
32. Y’s EHC plan went through a series of drafts before the next final plan was issued in April 2020. This plan, at section H, stated “[Y] and her family will independently access activities within the community” and that the family could access the local offer via its website for information about universal services. Universal services are services available to all families. There is no record of a further social care assessment during this period.
33. In May 2020 the Council agreed to carry out a fresh assessment of Y’s needs in response to Mrs X’s concerns that they had not been fully identified.
34. Social care advice, as part of the EHC process, dated June 2020 refers to a telephone call with Mrs X to discuss the family’s social care needs. Mrs X explained Y’s difficulties. She asked for an assessment by the children with disabilities (CWD) team and said she wanted direct payments to fund additional support. The record also shows Mrs X was given information about a charity providing, on behalf of the Council, a youth group for children and young people with disabilities. I have seen no record to show a budget was agreed for this and Mrs X says no services were available, at least in part due to difficulties as a result of the COVID-19 pandemic.

Request for social care assessment

35. As mentioned, Mrs X asked for an assessment by the CWD team and for direct payments in June 2020.
36. Council records show it considered:
• Y’s background and the post adoption support in place through Council B;
• Y’s physical disability, including that she received the middle rate of Disabled Living Allowance (DLA):
• Y had recently been diagnosed with moderate to severe learning difficulty;
• Y was following an Autism Spectrum Disability (ASD) pathway;
• Mrs X was seeking direct payments to fund additional support; and
• Mrs X said she needed a break as Y needed constant support.
37. The record shows the Council decided Y did not meet the criteria for the CWD team because she did not have a clear diagnosis of learning disability, which it considered was not the same as a learning difficulty. It noted that Y’s historical trauma was more likely the cause of Y’s learning difficulties rather than a learning disability. The record also stated Y had not met the threshold for social worker intervention or Early Help, although the reasons for concluding this are not clear. The record says it told Mrs X the outcome.
38. In early August 2020, the Council agreed Y should attend school 2 from September 2020. The Council issued a final amended EHC plan naming school 2. Council records in March 2021 refer to officers advising Mrs X in late July 2020 that a TAF would be considered when Y started school 2 in September. Mrs X told me this was considered in the autumn term but she was told the threshold was not met. The Council said it could not locate any records about considering a TAF.
39. An internal record dated 2 October indicated Mrs X had raised the question of a CWD assessment at a Parent Carer Forum and an officer had agreed to look into this for her. The record stated a CWD assessment was refused because the criteria was not met but there should be a referral to another team in those circumstances. The officer asked for this to be considered again.
40. On 8 October the Council wrote to Mrs X to explain Y had not met the threshold for its CWD team, which it said was reserved for the most significantly disabled children. It said all children with a disability can have an assessment but only those meeting the CWD criteria would be assessed by that team. It offered to discuss this by telephone if that would be helpful.
41. After further communications, the Council clarified on 16 December 2020 that Y could have a section 17 assessment, and a referral for this would be signposted to the relevant team. There is no record the Council contacted Mrs X about the assessment after sending this letter.
42. In January 2021, an NHS consultant wrote to the Council to support the request for a social care assessment, following which the Council’s iArt team contacted Mrs X about the assessment. Council records indicate an officer explained to Mrs X at a Parent Carer Forum that iArt was the route for all social care assessments. On 1 February, the Council responded to a further contact from the MP to confirming it had not refused to carry out an assessment but it would not be through its CWD team.
43. Mrs X was unhappy the Council would not agree to an assessment by the CWD team. She explained why she considered Y was disabled and therefore entitled to an assessment. She also said she had been advised by her adoption social worker at Council B that a child in need assessment was not appropriate because there were no safeguarding concerns. Having looked at the information about iArt on the Council’s website she did not think this was appropriate for Y.
44. A social worker started an assessment in March 2021. The record stated:
• Y was not able to access activities without Mrs X being there to support her throughout;
• Mrs X was working full-time, which she needed to do as a single parent to pay the mortgage, but she was not able to access wraparound care;
• there were no safeguarding concerns and Mrs X had not consented to an assessment.
45. On this basis the Council closed the case. The record does not show the Council explained that the assessment would be the same, whichever team carried it out, nor that it explained that carrying out the assessment through the iArt team did not imply any safeguarding concerns.
46. Mrs X complained. She said:
• she had been refused an assessment by the CWD team during the EHC process because Y was not “disabled enough”;
• she had not been told she could request a section 17 assessment nor was she told she could ask for a carer’s assessment until some months later;
• the Council had also refused a “team around the family” when Y started school 2; and
• the information on the Council’s website suggested iArt was not appropriate for Y and she had been told this was for children whose safety was at risk.
47. The Council responded on 28 May 2021. It said it would carry out an assessment and its iART team had been in touch with Mrs X to progress this. It did not respond to Mrs X’s concerns about the poor advice and information, which had led to a delay of several months in starting the assessment.
48. Mrs X complained to us in June 2021 because she said the Council was still saying Y did not meet the criteria for an assessment. When I spoke to her in September 2021, she said the Council was still refusing to carry out an assessment. She said Y could not attend the normal activities for her age and needed constant supervision from Mrs X when attending activities for disabled children. She said she wanted direct payments to employ a part-time tutor (who she had used when Y was out of school during the COVID-19 pandemic) to help Y access social activities without Mrs X and to help Y develop some life skills.
49. In response to my enquiries, the Council said it could not carry out a social care assessment for Y because Mrs X had not consented to this. This meant it had not been able to assess whether Y needed short breaks support, nor whether direct payments were appropriate. For the same reason, it could not carry out a carer’s assessment.

Adoption support

50. The Council also had a duty to consider whether Y needed post adoption support when responsibility was transferred to it from Council B.
51. Council records show Council B requested a transfer in late October 2020, although it did not provide all the relevant documents and had not arranged a transfer meeting. Despite that, this Council immediately contacted Mrs X to consider Y’s adoption support needs. In addition, a social worker from the adoption team supported Mrs X in relation to difficulties at school 2 in November and December 2020. In early February the transfer meeting was held, and the assessment of Y’s adoption support needs was completed. As a result, it was decided that further support from the adoption team was not needed, and the case was closed with Mrs X’s agreement in early March 2021.
52. Mrs X contracted the adoption team again in late June 2021. A social worker was allocated within a few days and arranged to meet Mrs X to assess what adoption support was needed. Also in July, the social worker also supported the family by providing advice and information to a holiday club setting to ensure the childcare arrangements for the school holidays did not break down and gave Mrs X details of alternative providers in case this was needed.
53. In late August there was a further discussion about the support needed and this was followed by an application to the Adoption Support Fund (ASF) in early September. The ASF provides funding for therapies for adopted children. The ASF agreed the funding in October 2021, and the Council told Mrs of this.

Wraparound childcare

54. Mrs X told the Council in June 2020 she was having difficulty accessing wraparound care for Y because there were insufficient services for disabled children. She said she needed to work full-time to pay the mortgage. She said the Council acknowledged there was a shortage of services for disabled children but offered no assistance.
55. In response to my enquiries about this, the Council said had developed an action plan for increasing provision and was encouraging parents to talk to their children’s school, in the first instance, so schools could assess whether providing wraparound care was feasible for them. A working group is partnering with the Parent Carer Forum to deliver the action plan. It is also working towards ensuring more detailed information is included on its website about childcare for children and young people with additional needs.

My findings

EHC plans 2019 & 2020

56. When developing an EHC plan, councils are required to consult appropriate professionals, including social care. This does not mean councils have to carry out a social care assessment in every case. Where social care are already working with the family it may be sufficient for information to be shared so it can be included in section H of the plan.
57. There is no record of an assessment as part of the development of Y’s EHC plan, issued in February 2019. However, there was an assessment in April 2019 that concluded there was no need for further social care involvement. On balance therefore, it is unlikely that if the Council had carried out an assessment when consulting on the EHC plan this would have resulted in social care needs being identified and set out in section H. This remained the case when a final amended EHC plan was issued in April 2020.

Re-assessment in 2020

58. The Council agreed to re-assess Y’s SEN needs in May 2020 and, as part of that assessment, consulted social care. Social care contacted Mrs X in June 2020, at which point Mrs X reported a number of difficulties. The record says Mrs X was given information about a charity that provided support for disabled young people on behalf of the Council. I understand support was not available then due to the COVID-19 pandemic. Although there is no record the Council followed up on this, I do not consider it appropriate to make a finding of fault because it is unclear what support could have been arranged or accessed at that time.

Social care assessments

59. Mrs X asked for an assessment by the CWD team in June 2020. The Council considered this and decided Y did not meet the criteria. There is no dispute that Y is disabled but the CWD team is for the most disabled children. The record shows the Council properly considered whether Y met the criteria. There is no fault in the way it considered this.
60. The record in June 2020 states Y’s needs had not met the threshold for Early Help or social work intervention (child in need). It does not set out the reasons for concluding this. This was fault. The lack of an appropriate record means I cannot consider the Council’s decision-making at that time. It is uncertain whether the outcome would have been different if this had been properly considered and the reasoning recorded.
61. The Council had an opportunity to put this right in October 2020 after Mrs X spoke to an officer at a Parent Carer Forum. Council records show it recognised at that point that, as a disabled child, Y was a “child in need” under section 17 of the Children Act 1989 and was entitled to a social care assessment. It is for the Council to identify the appropriate team to carry out the assessment. The assessment process would be the same whether or not it was carried out by the CWD team or another team. This was not explained to Mrs X in October 2020, which was fault. The lack of appropriate information and advice at that stage meant Mrs X could not make an informed choice about whether to proceed with an assessment by another team. That said, I am satisfied the Council did explain why it decided Y did not meet the criteria for the CWD team.
62. I acknowledge the Council did explain to the MP in February 2021 that Mrs X could have the same assessment through another team. There is also a record referring to a conversation with Mrs X at a Parent Carer Forum around that time, although the record does not indicate what was said to her. It seems Mrs X then received incorrect advice from the social worker at Council B, for which I cannot hold this Council responsible. Mrs X also raised concerns about whether the iArt team was appropriate, based on information on the Council’s website. Mrs X understood that iArt were only working with children at risk of significant harm, which was not the case for Y. The record does not indicate that this mistaken impression was corrected. The Council therefore missed a further opportunity to explain that assessments for disabled children do not have to be carried out by the CWD team and the same assessment could be carried out by other teams.
63. It had a further chance to explain its position when responding to Mrs X’s complaint in May 2021. However, it simply said it would carry out an assessment and did not respond to the other issues Mrs X raised. The failure to address all aspects of the complaint was further fault. The result was a further cycle of offering an assessment and Mrs X refusing because she thought it needed to be carried out by the CWD team. This caused Mrs X avoidable frustration.
64. I acknowledge the Council indicated its willingness to carry out an assessment at various points. I also recognise it explained why Y did not meet the criteria for its CWD team and that it had conversations with Mrs X at Parent Carer Forums for which no written record is available. That said, it has not demonstrated it properly explained that the assessment proposed was not for children considered at risk and was suitable for disabled children such as Y.
65. Overall the faults identified led to a delay in starting an assessment from October 2020 to June 2021 when Mrs X complained to us. It also meant Mrs X was put to the time and trouble of pursuing the matter and bringing a complaint to us. In addition, it means the Council has not considered her request for direct payments, nor has it considered whether Y needs short break support, nor has it considered Mrs X’s needs as a carer. In the absence of any assessment, I cannot say whether Y or Mrs X have missed out on support they were entitled to. This leaves Mrs X with uncertainty over whether the outcome would have been different had it not been for the faults identified.
66. Also in this period the Council considered whether Y’s needs met the criteria for a TAF but it has not been able to locate any record to show how it considered this. The lack of appropriate records was fault. As a result, I could not investigate this part of the complaint and leaves Mrs X uncertain about whether the Council properly considered it.

Adoption support

67. Since Y is adopted, I have also considered whether the Council provided appropriate post adoption support after the responsibility for this transferred to it from Council B.
68. The records show there was no delay in the adoption team responding to the request from Council B in October 2020, nor in responding to Mrs X's contact in June 2021. On both occasions, social workers carried out a comprehensive assessment of the adoption support needs and took appropriate action to follow through on the action identified. The team also supported Mrs X when difficulties arose at school 2 in late 2020 and when difficulties arose with holiday child-care in July 2021. I have not identified fault in the support from the adoption team.

Wraparound childcare

69. Mrs X raised concerns about the availability of wraparound care in June 2020. I have seen no record of the advice given at that time but note this was during the early stages of the COVID-19 pandemic and Y was not attending school. Therefore, the usual approach of contacting the child’s school initially would not have been appropriate at that time. It is also likely that provision was more limited than usual in that period due to COVID-19 restrictions, which meant most childcare providers had to reduce the number of places available. In the circumstances, although the Council did not respond proactively to Mrs X’s concern, I do not consider this amounts to fault.
70. In terms of its wider duties, the Council has an action plan for increasing the availability of wraparound care for disabled children in line with its responsibilities under the Childcare Act 2006.

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Agreed action

71. The Council will apologise to Mrs X for the uncertainty and frustration caused by its failure to:
• properly record its reasons for deciding Y did not meet the threshold for social care involvement in June 2020;
• provide appropriate information and advice about social care assessments in October 2020 and March 2021;
• address all aspects of Mrs X’s complaint in May 2021; and
• keep a proper record of how it considered whether a Team Around the Family was appropriate when Y started at school 2 in September 2020.
72. The Council will pay Mrs X £300 to remedy the uncertainty about whether the family missed out on support as a result, and for her time and trouble pursuing the Council for assessments.
73. The Council will:
• write to Mrs X to offer a social care assessment for Y and a carer’s assessment for Mrs X; and
• allocate a social worker to carry out the assessments. It should ensure that either as part of the assessment, or immediately following it, the Council considers the request for direct payments.
74. It will complete the above recommendations within one month of the date of the final decision.
75. Within three months of the date of the final decision, the Council will consider how it can provide clear information to families who do not meet the criteria for its CWD team about other assessments that may be available through other teams. It may wish to produce an information sheet that it can provide to families in that situation. It should report to us on the action it has taken and provide an action plan for any outstanding work.

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Final decision

76. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman