Summary: The Council is at fault for failing to provide short break provision as per Y’s Education, Health and Care Plan and his Child in Need Plan. This has caused significant injustice to Y and his family. The Council has agreed to remedy the ongoing injustice to the family, and it has also agreed to make service improvements.

The complaint

1. The complainant, who I shall refer to as Mr X, complains the Council has failed to provide two weekends per month of short break care since 21 June 2021, as specified in his son, Y’s, Education, Health and Care (EHC) Plan and Child in Need (CIN) Plan.

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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 an organisation’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)
4. 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

5. I considered Mr X’s complaint and the information he provided.
6. I considered the information I received from the Council in response to my enquiries.
7. Mr X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received from both parties before making this final decision.

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What I found

Relevant law and guidance

The Children Act 1989

8. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
9. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in section 2.
10. Services which can be provided under section 2 CSDPA include:
• practical assistance in the home including home based short breaks / respite care;
• recreational / educational facilities including community based short breaks; and
• travel and other assistance.
11. When a council assesses a child as being in need, it supports them through a child in need (CIN) plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review CIN plans regularly. Statutory guidance published in 2018, Working Together to Safeguard Children, sets out the legislative requirements placed on individual services.

Assessment of need

12. The expectation of ‘Working Together to Safeguard Children’ is that an assessment which identifies significant needs will generally lead to the provision of services, but it is not the case that there is a duty to meet every assessed need. Whether a service is required is dependent on the nature and extent of the need assessed and the consequences of not providing a service. Councils may use eligibility criteria and take into account their available resources when providing services under section 17 of the Children Act.
13. If a council is satisfied it is ‘necessary’ to provide support services under section 2 of the CSDPA then services must be provided regardless of the council’s resources.

Education, Health and Care (EHC) plans

14. 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.

Children’s statutory complaints procedure

15. The Children Act 1989 sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage two of the procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review panel to be held.
16. The regulations place a duty on councils to act promptly to ensure the complaint is dealt with as quickly as possible. The Department for Education guidance, Getting the Best from Complaints, says:
• The complaint should stake a maximum of 20 working days at stage one.
• The stage two investigation should take a maximum of 65 working days.
• A maximum of 30 working days may be taken to convene and hold a stage three review panel.
17. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless we consider that the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

18. This chronology provides an overview of key events and does not detail everything that happened.
19. Y is 16 years old and has a diagnosis of autism, severe learning difficulties, Attention Deficit Hyperactivity Disorder (ADHD) and sensory processing disorder. Y is also completely non-verbal and struggles to communicate his needs. Y’s development is similar to that of a child at pre-school age and as such he needs the care and support that is provided to a child of this age although when he is upset and distressed this can be hard to manage due to his size. He presents with a high degree of challenging behaviour and requires a high level of support both at home and in the community.
20. Due to Y’s complex needs, he is considered a child in need (CIN) and has a CIN Plan. The CIN Plan identifies short breaks ‘as part of safety and contingency planning’.
21. Y is also subject to Community Care, Education and Treatment Reviews (CETRs). CETRs are arranged and reviewed by the NHS and their aim is to support young people with learning disabilities and/or autism by identifying appropriate support in the community. The CETRs are attended by professionals working with Y and an independent panel (the Panel).
22. Y has an Education, Health and Care (EHC) plan maintained by the Council. Y’s EHC Plan identifies the need for two weekends per month of short break provision.
23. The Council secured a respite setting (Placement 1) in a neighbouring authority’s area for Y. Placement 1 was able to meet Y’s needs however this provision eventually stopped because the local authority could no longer provide care to children outside of their area.
24. Y was subsequently moved to Placement 2. This was also outside the Council’s local authority area. To begin with, Y did not have full weekends at Placement 2 but by the time he began transitioning to longer periods of time, from Friday through to Sunday afternoons, COVID-19 restrictions due to the pandemic were introduced and the support ended. In June 2021, Placement 2’s local authority, without giving any notice, withdrew support for all children and young people outside of its area.
25. The Council completed the short breaks referral form requesting two weekends per month and issued the first search on 29 June 2021.
26. In December 2021, Mr X complained to the Council about its failure to arrange short break provision or provide alternative provision.
27. As an interim measure, the Council offered direct payments and care in the home for Y. Mr and Mrs X refused this because they felt it would be distressing for Y and they felt forced out of their home.
28. In June 2022, the Council responded to Mr X’s complaint under stage one of its Corporate Complaints Procedure. It upheld Mr X’s complaint and said work was ‘underway to try to increase sufficiency’ across the Council’s area but ‘specific details were not available’. The Council acknowledged the complaints process was unable to resolve Mr X’s complaint and said it was unable to provide an indication of when the matter is likely to be resolved. It also acknowledged the ongoing adverse impact the situation was having on the family.
29. Mr X escalated his complaint to stage two of the complaints process. He complained the Council had not taken the opportunity to develop its capacity to provide short breaks in the area over the past four years.
30. In June 2022, the school Y was attending said it was no longer meeting his needs and they were simply ‘containing him’ in a separate room. The Council offered to commission support to stabilise Y’s placement at the school, but the school felt it would not be beneficial.
31. Mr and Mrs X were of the view that if the short break provision was not available then a full-time residential placement was the next best thing for Y. In September 2022 the Council began searching for a 52-week residential placement for Y.
32. The Council’s stage two complaint response acknowledged Mr and Mrs X’s view that regular, reliable short breaks, as identified in Y’s EHC plan, would prevent the need for full time residential provision. It said the situation was raised with the Council’s Director of Specialist Services, Mr B, who was progressing increased capacity in relation to short break options and that he would write to Mr X to provide further information about these developments.
33. The Council conducted searches for short break provision and 52-week residential placements for Y within a two-and-a-half-hour radius from the family home without any success. The Council says it continues to conduct the searches every fortnight, but sufficiency of places continues to be a challenge across the country.
34. A CETR was held in February 2023 where the professionals working with Y were in attendance. The Council confirmed in this meeting that, with Mr and Mrs X’s agreement, it had widened the search to consider 16-plus specialist colleges which would allow Y to attend until he is 25 years old, however, the provisions identified so far had proved to be unsuitable.
35. The meeting notes from the CETR meeting refer to Mr and Mrs X ‘feeling emotionally empty’, Mr X having to put his career on hold to support Mrs X with Y and they advised that they cannot sustain things the way they currently are.
36. The Panel queried the contingency plan the Council had in place should Mr and Mrs X become ‘burnt out’. The Council said it would put an emergency plan in place and a provision would be identified but there were currently no active contingency plans in place.

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Analysis

37. Y has significant and complex needs, which over time are growing more challenging as he gets older and physically stronger.
38. It is clear from the documentation that there have been failings in the service the Council has provided to Mr and Mrs X and to Y. The Council accepts the family require short breaks and acknowledges it has not provided this support. The Council has also not provided an alternative short breaks package for Y since June 2021. These failings in service amount to fault.
39. I recognise there is a current nationwide shortage in residential provision for children with and without disabilities. However, the statutory guidance is clear that if a council is satisfied it is ‘necessary’ to provide support services, then it must provide them, regardless of their resources.
40. I note the Council has only recently began working in partnership with a voluntary sector provider to open short break provision and that this could take several months to come to fruition. These efforts to increase short break provision could have started sooner. The Council has known for several years that it did not have the provision in its area, and it has relied on surrounding local authorities to provide it. When demand for that provision increased in those neighbouring areas it was inevitable it would no longer be available for those out of their local authority areas. The Council could have anticipated that relying on provision in other council areas to fulfil its own statutory duties was precarious and not a long-term solution.
41. The evidence shows that professionals working with the family are worried that should the current situation continue unchanged, the family are at significant risk of breakdown. Despite being aware of this risk, a review of Y’s CIN Plan from February 2023 highlights the absence of any contingency plan if Mr X and Mrs Y do become ‘burnt out’. The Council was aware the family had not had any short break provision since June 2021 yet in February 2023 it still did not have a contingency plan in place. I consider this is fault and another example of the Council’s lack of forward planning.
42. I understand the Council is currently in the process of arranging 10 hours of support within the home to minimise the risk of parent/carer burnout and that this was not actioned sooner due to Mr and Mrs X’s reluctance for support within the home due to the distress this is likely to cause Y and the need for both parents to have a break from caring for Y without having to leave the family home.
43. The absence of respite since June 2021 has had a significant impact on Mr X and his family. The Council has upheld Mr X’s complaints and apologised for its failings. I do not consider the apology to be an adequate remedy for the injustice the failings have caused the family.
44. The Council was aware Mr and Mrs X were struggling to cope with Y’s behaviour and care needs and that this was affecting his own and his family’s health and wellbeing. Having upheld Mr X’s complaints I consider a financial remedy, in recognition of the ongoing impact the failings are having on Mr X and his family would be appropriate.

The Council’s complaint handling

45. Mr X complained to the Council in December 2021, but it did not send its stage 1 complaint response to Mr X until June 2022. The Council’s corporate complaints procedure states it will respond to stage 1 complaints within ’10 or 20 working days’. The Council sent its response approximately five months late. This is fault.
46. I also consider the Council is at further fault for not identifying and considering Mr X’s complaint under the Children Act statutory complaints procedure. Y is a child in need with an EHC Plan and the provision or service complained of related to its section 17 duties. The ‘Getting the Best from Complaints’ statutory guidance says all complaints about children’s social care services, including services for disabled children, must go through the statutory children’s complaint process. When the Council received Mr X’s complaint, it should have replied using the Children Act Statutory Complaints Process. I consider the Council’s failure to do so as fault.

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Agreed action

47. To remedy the injustice caused by the identified faults, the Council has agreed, that within four weeks of this final decision, it will:
• Pay Mr X £1000 as a symbolic payment to recognise the distress caused. This amount reflects the harm caused to Mr X as a result of the lack of respite provision;
• Pay Mrs X £1000 as a symbolic payment to recognise the distress caused. This amount reflects the harm caused to Mrs X as a result of the lack of respite provision;
• Pay Y £1500 as a symbolic payment to recognise the distress and difficulties experienced because of the lack of respite provision. I recommend this payment is used by the family for the benefit of Y’s health and wellbeing;
• Proactively seek short break provision for Y. The Council should provide us with evidence of the steps it has taken to ensure suitable provision is available as soon as possible.
• Pay the family £200 for every month the family is without suitable overnight short break provision as per Y’s EHC Plan and CIN Plan. The payments are to be made to the family on or around the last working day of the month the family are without overnight short break provision. The first payment of £200 should be made on or around 29 September 2023. If the Council stops this monthly payment to the family before the provision is secured, Mr X can submit a fresh complaint to the Council.
48. The Council has also agreed, that within eight weeks of this final decision, it will:
• Demonstrate it has a clear contingency plan should Y’s current placement within the home break down;
• Provide training to all relevant council officers on identifying complaints that should be considered under the Children Act Statutory Complaints Procedure.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. The Council is at fault for not providing the short break provision as agreed in Y’s EHC Plan and CIN Plan. This has caused significant injustice to Mr X and his family. The Council has agreed to remedy the ongoing injustice to the family. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman