Summary: We found fault by the Council as it failed to secure full-time educational provision for Mr K, a young person with complex needs. We also found the Council failed to arrange regular overnight respite care for Mr K. This placed significant pressure on Mr K’s relationship with his mother, Ms J, and caused them both significant distress. The Council agreed to apologise to Mr K and Ms J and pay a financial remedy in recognition of the impact of this fault on them. We found no fault with the care provided to Mr K by the Mental Health Trust.

The complaint

1. The complainant, who I will call Ms J, is complaining about the care and support provided to her son, Mr K, by Devon County Council (the Council) and Devon Partnership NHS Trust (the Trust). Ms J complains about the following matters.

• The Trust failed to carry out a full mental health assessment for Mr K. Ms J says this should have been done to inform decisions about Mr K’s schooling.
• The Council failed to appropriately support Mr K to return to school between July 2019 and November 2020 and did not arrange suitable alternative educational provision for him in the meantime.
• The Council failed to provide her family with financial and social care support during this period.

2. Ms J says Mr K was out of school for over a year and missed out on education throughout this period. She says this has been extremely distressing and frustrating for both her and Mr K. Ms J says Mr K’s behaviour has deteriorated during this period and that he has been violent towards her.
3. Ms J would like Mr K to have a full mental health assessment and to be placed in suitable education. She would like the Council and Trust to acknowledge, and apologise for, their mistakes and take action to prevent other families having to experience the same problems. Ms J would also like to receive financial recompense in recognition of the distress and hardship caused to her and Mr K by the Council and Trust’s failure to support them appropriately.

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The Ombudsmen’s role and powers

4. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council and Trust followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. If the Ombudsmen find fault resulting in an injustice, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
7. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. In making my final decision, I considered information provided by Ms J and discussed the complaint with her. I also considered information provided by the Council and Trust, including relevant records. In addition, I referred to relevant law and guidance. Further, I considered comments on this draft decision statement from Ms J and the organisations she is complaining about.
9. 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

Relevant legislation and guidance

Education Act 1996

10. Section 7 of the Education Act 1996 says parents must ensure their children receive suitable full-time education at school or otherwise. Local authorities can take action against parents who do not ensure their children’s attendance at school.
11. Section 19 of the Education Act 1996 provides that local education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
12. This was amended by Section 3 of the Children, Schools and Families Act 2010, which made it the local authority’s duty to provide full-time education from 1 September 2011.

Children and Families Act 2014

13. The Children and Families Act 2014 sets out local authorities’ duties to children and young people with special educational needs or disabilities. The Act introduced Education, Health and Care Plans (EHC Plans) for children and young people with special educational needs. The EHC Plan sets out the child or young person’s needs and what arrangements should be made to meet them.
14. Section 42 of the Act says that a local authority must secure the educational provision specified in a child or young person’s EHC Plan.
15. The same section of the Act says that, if the child or young person’s EHC Plan specifies health care provision, the responsible commissioning body must arrange this provision.
16. The Special educational needs and disability code of practice: 0 to 25 years (the code of practice) was introduced in 2014 to accompany the Act. This is the key statutory guidance for local authorities and partner agencies around the provision of support to children and young people with special educational needs.

Coronavirus Act 2020

17. In March 2020, the Coronavirus Act 2020 became law. This Act set out temporary changes to existing legislation and guidance to maximise the capacity of NHS and public sector services to handle the emerging COVID-19 pandemic.
18. That month, schools closed to most pupils, other than the children of key workers and children considered vulnerable.
19. From 1 May to 31 July 2020, the duty to secure educational and health provision for children and young people with an EHC Plan was modified by a notice from the Secretary of State for Education, issued under the Coronavirus Act 2020. This set out that, during this period, local authorities and health commissioners were required only to use their “reasonable endeavours” to secure this provision.

Child in Need

20. Section 17 of the Children Act 1989 places a duty on local authorities to safeguard and promote the welfare of children within their area who are in need.
21. Section 17(10) and (11) of this Act says a child is considered to be in need if:

“(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c) he is disabled,

and “family”, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.”

22. Under this Act, a local authority has a duty to assess a child it considers to be in need. It must then provide services to meet any assessed needs.

Key facts

23. Mr K is a young person with a diagnosis of Autism Spectrum Disorder (ASD). He has complex educational and care needs and behavioural difficulties. Mr K has an EHC Plan to support him in education.
24. Mr K’s EHC Plan was finalised in May 2019. This set out that Mr K had special educational needs in several areas, including social interaction, behaviour management and anxiety. However, it was agreed Mr K’s needs could be met in mainstream education.
25. In June 2019, Mr K was 14. He was living at home with Ms J and attending a mainstream school. He was receiving support from the Trust’s Child and Adolescent Mental Health Service (CAMHS). Mr K also had an allocated social worker.
26. Mr K was considered to be a Child in Need under Section 17 of the Children Act 1989. He was in receipt of overnight respite care every Friday night that allowed Ms J a short break from her caring responsibilities.
27. That month, the Council convened an EHC Plan review meeting. Those present at the meeting, including Ms J, agreed that Mr K’s current school was struggling to meet his complex needs. The meeting heard the Council had identified a potential alternative placement (Provider 1). However, this placement would not be available until October as it was still being set up.
28. Following the meeting, the Council’s Special Educational Needs (SEN) officer advised Ms J that Mr K would need to return to the school in September until the alternative provision was available. However, Ms J felt it would be damaging to Mr K’s mental health to return to the school. Ms J said she would prefer the Council to seek alternative interim provision.
29. In late August, the SEN officer advised Ms J that it would not be possible to arrange interim provision until September, when providers reopened after the summer holidays.
30. In early September, the Council arranged for Provider 1’s community team to support Mr K with ten hours of education and mentoring per week. Ms J was concerned that this provision did not provide Mr K with enough educational support. Ms J said she felt Mr K needed a more academic and structured learning environment.
31. The professionals supporting Mr K were due to meet in October to discuss long-term plans for his education. The meeting did not go ahead as Mr K’s psychologist was unable to attend.
32. By November, Provider 1 was still not able to take Mr K as a pupil. As a result, the Council arranged for Mr K to receive a further 15 hours per week of mentoring support from Provider 2.
33. The Council arranged for Ms J to visit Provider 1’s school in January 2020. Ms J remained concerned that the informal and less rigidly structured environment would not be suitable for Mr K.
34. By January, two of Mr K’s regular respite providers had withdrawn their support. The Council began to search for alternative respite providers.
35. The case records show Mr K’s behaviour was deteriorating during this period. At a meeting in February, Provider 1 said it could no longer offer Mr K a placement due to his complex needs. At the same meeting, both Provider 2 admitted they were struggling to support Mr K in the community. The SEN officer suggested a specialist school (Provider 3) that may be able to meet Mr K’s needs. Provider 1 subsequently withdrew support in March.
36. Ms J and Mr K visited Provider 3 on 27 February. Provider 3 declined to offer Mr K a place as it said it would be unable to meet his needs. Provider 3 also confirmed that one of its other placements would be similarly unsuitable.
37. In the meantime, the Council contacted another mentoring service as both Provider 1 and Provider 2 had ended their support for Mr K. Again, the service declined Mr K as a client due to his complex needs.
38. In mid-March, the Council approached three providers (including Provider 3) to see whether they could offer Mr K a residential placement. Provider 3 said it had a potentially suitable placement available out of area but would first need to see additional information about Mr K’s mental health and behavioural needs.
39. In addition, the Council identified Provider 4 as a potential alternative. Provider 4 was not a registered school but was able to offer Mr K therapeutic support and a tailored curriculum. The Council agreed Mr K could be educated other than at school.
40. That month, Mr K’s remaining respite provider withdrew support.
41. The multidisciplinary team also referred Mr K to the Forensic CAMHS (FCAMHS) at a neighbouring Trust for a risk assessment due to his behaviour.
42. In late March, the government introduced a national lockdown in response to the emerging COVID-19 pandemic. This meant a tutoring service Ms J had identified (Provider 5) could not start work with Mr K immediately.
43. The FCAMHS service met with the multidisciplinary team in May to gather information to inform its risk assessment.
44. During the lockdown period, Mr K’s school remained open to vulnerable pupils. In April, Mr K’s social worker approached the school to see whether he could return there on a short-term basis. However, the school was only providing a very basic service and said it could not support Mr K.
45. In June, the Council agreed Provider 5 would support Mr K with a tutoring service for 15 hours per week. This support remained in place throughout the school holidays.
46. The Council also agreed a placement with Provider 4 to begin in September for three days per week. Provider 4 subsequently confirmed the placement could not start until November as it needed to recruit additional staff.
47. The FCAMHS team provided its report in July. This noted Mr K would benefit from a stable care setting to allow him to better engage with therapeutic work.
48. That month, Mr K had a brief period in foster care due to a deterioration in his relationship with Ms J. However, he returned to live with her shortly afterwards.
49. Towards the end of July, Ms J used her Direct Payments to fund a respite provider who was able to support Mr K with overnight respite provision on some Friday nights.
50. In September, Ms J began to commission enabling support for Mr K via Direct Payments from another agency (Provider 6) for 10 hours per week. This was to support Mr K with activities of daily living that he found challenging.
51. Mr K’s relationship with Ms J deteriorated further over the following months. In October, Mr K entered an emergency foster placement with Ms J’s consent under Section 20 of the Children Act 1989.
52. Mr K began his placement with Provider 4 in November 2020. He remains under the care of the Council at the time of writing this decision statement.

Analysis

Mental health assessment

53. Ms J complained that Mr K needs a full mental health assessment as he has not received any substantive mental health input since receiving his ASD diagnosis in 2014. Ms J said consultant psychiatrists she spoke to in both 2015 and 2020 felt Mr K may have an emerging personality disorder. However, Ms J said pressure to identify a suitable school placement for Mr K meant the Trust only arranged a risk assessment rather than a full mental health assessment.
54. My investigation has focused on events from 2019 onwards. I have not seen copies of the full clinical records before this point and cannot therefore comment in detail on what was discussed at appointments before this.
55. However, the evidence I have seen suggests Ms J first raised the possibility of a personality disorder diagnosis with a consultant in August 2015. The consultant explained that Mr K’s personality was still developing and that it was too early to consider this diagnosis.
56. In June 2019, the Trust submitted an assessment report to inform Mr Y’s EHC Plan review. This referred to Mr Y’s diagnoses of ASD and ADHD, along with emotional regulation difficulties and associated challenging behaviour. There is no indication in this assessment report that the Trust was considering a personality disorder diagnosis.
57. Ms J attended a clinical review with Mr K’s consultant psychiatrist on 18 February 2020. Mr K did not attend. The review recognised that Mr K’s time out of school was having an impact on his behaviour. Ms J reported that Mr K was becoming increasingly verbally and physically aggressive towards her and other members of the family.
58. There is some dispute as to what was discussed at this review. In her correspondence with the Ombudsmen, Ms J (who was accompanied by a friend) says the consultant suggested Mr K may have an emerging personality disorder. Ms J says the consultant felt a full mental health assessment was needed to clarify Mr K’s diagnoses. However, there is no reference to this possible diagnosis or the need for an assessment in the consultant’s notes of the review.
59. On 3 March, the Trust referred Mr K to the FCAMHS service at a neighbouring Trust. This service provides advice to professionals working with young people with complex needs whose behaviour is considered to be putting themselves or others at risk.
60. The FCAMHS team met with the professionals involved in Mr K’s care on 15 May and 18 June to gather information to inform the risk assessment process.
61. Ms J contacted Mr K’s consultant psychiatrist on 14 July to ask whether he had referred Mr K to a local personality disorder service as agreed at the review in February. However, the consultant psychiatrist said he did not recall agreeing to the referral and that he felt this was not indicated.
62. The consultant psychiatrist discussed Mr K’s medication with an FCAMHS consultant on 15 July. They agreed it might be beneficial to trial a period without medication to monitor Mr K’s mental state.
63. The FCAMHS service produced its report on 31 July. The report noted that Mr K’s ASD diagnosis and complex relationship with Ms J were key risk factors. The report also concluded that Mr K “engaged well at school and has expressed a desire to return to education. He currently has no access to education, which means increased time at home with [Ms J] and even more restricted social outlets; both of which are likely to increase his risk of violence.”
64. The report also set out a plan for mitigating the risk of violence by Mr K. This included securing a suitable educational placement, work to strengthen Mr K’s relationship with Ms J and a review of Mr K’s medication.
65. The FCAMHS service wrote to Mr K’s consultant psychiatrist on 14 August. The letter noted that Ms J felt aspects of Mr K’s character and behaviour may be “precursors of what can be seen in later years as aspects of some kind of adult personality disorder.” The service said a diagnosis of personality disorder would not be appropriate. It concluded that Mr K’s neurodevelopmental difficulties “would be highly likely to ‘trump’ a personality disorder, in terms of how best to understand him and support him.”.
66. The clinical records show Ms J felt Mr K’s challenging behaviour may be the result of a significant underlying mental health condition. This was considered by both the Trust’s CAMHS service and the FCAMHS service from the neighbouring Trust. The prevailing view of the treating clinicians was that Mr K’s behavioural difficulties were a result of his ASD diagnosis, age and problematic relationship with Ms J. This was ultimately a matter of clinical judgement for the clinicians involved.
67. Taking everything into account, I am satisfied the Trust appropriately considered whether a personality disorder diagnosis was indicated, albeit I appreciate Ms J disagrees with the clinicians’ conclusions. It was also appropriate for the Trust to arrange a forensic risk assessment to inform decisions about Mr K’s educational placement. I found no fault by the Trust in this matter.

Education – July 2019 to March 2020

68. Ms J complained that the Council failed to support Mr K to return to school between July 2019 and November 2020. In addition, Ms J said the Council did not put in place suitable alternative provision for Mr K while he was out of school. Ms J said Mr K’s extended period out of school led to him falling behind in his schoolwork and a deterioration in his behaviour.
69. Ms J discussed her concerns about Mr K’s school placement during the EHC Plan review meeting on 28 June 2019. The Council’s annual EHC Plan review document records that Ms J felt Mr K needed an alternative placement. This view appears to have been shared by the school and the other professionals present. The Council’s SEN officer noted that Mr K “requires increased support and personalisation and that an ongoing long-term placement with [the school] is likely to be unsustainable to meet these needs.”
70. The SEN officer noted that Mr K’s special educational needs “could be met in a mainstream placement but his wider complex needs make this more challenging.” However, the meeting agreed Mr K would be unlikely to accept a placement at a specialist school.
71. The Council’s SEN officer explained that an alternative provider (Provider 1) was in the process of setting up a new school that may be suitable for Mr K. There is some dispute as to when this new placement would become available. In his notes, the SEN officer recorded that the placement would not be available until after the October half-term “at the earliest”. Ms J disputes this and says the SEN officer simply said the placement would be available in October.
72. On 16 July, Ms J told the SEN officer that Mr K would benefit from access to outdoor-based education until the placement with Provider 1 could begin. She also said she was concerned Mr K’s mental health would suffer if he returned to school.
73. In August, Ms J confirmed that Mr K would not return to the school for the new term in September. Ms J requested the Council’s support with arranging interim provision until the new placement with Provider 1 could begin.
74. Local authorities have a duty under Section 19 of the Education Act 1996 to secure suitable provision for children of compulsory school age who are absent from school because of illness, exclusion or “otherwise”. In 2004, (G v Westminster City Council [2004]) the Court of Appeal stated that “[i]t seems to us that ‘otherwise’…is intended to cover any situation in which it is not reasonably possible for a child to take advantage of any existing suitable schooling.”
75. This means that, if a local authority has arranged for the provision of education which is suitable for a child and which he or she is reasonably able to attend, it is not under a duty to provide alternative suitable education.
76. In Mr K’s case, this meant the Council had two important decisions to make. First, it needed to establish whether Mr K’s current school was suitable to meet his needs. Second, the Council needed to establish whether it was ‘reasonably possible’ for Mr K to attend the school.
77. The case records show Ms J was concerned that Mr K’s school was not supporting him to meet his special educational needs as set out in his EHC Plan. She raised these concerns with officers in the social care and SEN teams throughout April and May 2019.
78. At the EHC Plan review meeting in June 2019, there was general agreement among the professionals supporting Mr K that his special educational needs could be met in mainstream education. However, all present at the meeting agreed that Mr K’s complex wider needs meant the school was struggling to support him. The SEN officer recorded that “an ongoing long-term placement with them is likely to be unsustainable to meet these needs.” The SEN team therefore began to work towards securing an alternative placement for Mr K with Provider 1.
79. In its response to my enquiries, the Council said the SEN team felt Mr K should return to the school on a short-term basis until it could secure alternative provision. The case records show an SEN officer wrote to Ms J on 10 July to explain “the provision [from Provider 1] will be coming online at some point in the Autumn term but I do not still have any confirmation about the starting date for the provision so at this time there needs to [be] preparation for [Mr K] to return to [school] as I don’t have any information to say otherwise.”
80. Ms J disputes this and says the school was unable to meet Mr K’s needs. She also provided a copy of a clinic letter from a CAMHS psychiatrist, who wrote that “I do support the plan not to have [Mr K] attend [the school] in September, as this is likely to cause more distress for all parties.”
81. In any case, by September 2019, the Council had accepted that Mr K would not return to the school and that this was a matter of parental choice. The Council therefore had a duty under Section 19 of the Education Act 1996 to secure suitable full-time education for Mr K as he was out of school.
82. The Council was aware the proposed placement with Provider 1 would not commence until late October 2019 at the earliest. It therefore arranged for interim provision from Provider 1’s community service to begin in September. This was intended to support Mr K’s transition to the new school placement. However, this was only for ten hours per week.
83. On 9 September, Ms J wrote to the team supporting Mr K to express concern that this interim provision would not meet his educational needs. She said Mr K “is capable of achieving academically and is entitled to a full time educational place, but I am concerned about this potential significant drop in his schooling”.
84. Ms J continued to raise similar concerns throughout September and October. In a further email to the SEN officer on 21 October, Ms J said that, of the ten hours per week of support from Provider 1, only two hours were being used for education.
85. When the Provider 1 placement was still not ready to take Mr K by November, the Council arranged for Provider 2 to provide additional support for 15 hours per week.
86. This support arrangement remained in place until early March 2020, by which point the placement with Provider 1 had been further delayed and, eventually, collapsed. Provider 2 withdrew support in February, with Provider 1 following suit in March.
87. The case records show Ms J had significant concerns about the adequacy of the support provided by Provider 1. She said this included very little educational provision, with most of the time devoted to mentoring and pastoral support. She said the offer lacked proper structure and that the ten hours per week included travel time. Furthermore, Ms J said Provider 1 was inflexible with times and regularly cancelled sessions.
88. In its response to my enquiries, the Council acknowledged the support provided by Provider 1 initially was not educational. Rather, the Council said this was mentoring support intended to prepare Mr K for his transition to the Provider 1 school placement. The Council said this type of support was most appropriate to meet Mr K’s needs at that time. The Council also said the provision developed when Provider 2 became involved, with Provider 1 focusing more on education as time went on. Ms J disputes this. Indeed, Ms J said Provider 2 was more flexible and willing to support Mr K’s learning. However, she said the support it offered was primarily pastoral.
89. From September 2019, the Council had a duty to secure suitable full-time educational provision for Mr K. Section 19 of the Education Act 1996 says this should be “suitable to his age, ability and aptitude and to any special educational needs he may have”. Furthermore, the Council had a concurrent duty under Section 42 of the Children and Families Act 2014 to secure the educational provision set out in Mr K’s EHC Plan.
90. The case records show the professionals supporting Mr K felt his special educational needs could be met in a mainstream school setting. Prior to July 2019, Mr K’s attendance at his school had been generally good and I found no evidence to suggest he was unwilling to engage in educational activities. It is unclear therefore why the Council felt the pastoral and mentoring support services offered by Provider 1 and Provider 2 were more suitable for Mr K than full educational provision.
91. The evidence I have seen suggests the Council provided Mr K with only very limited educational provision between September 2019 and March 2020. This was contrary to the Council’s duties to Mr K under the Education Act 1996 and Children and Families Act 2014. This was fault.
92. I am unable to say how well Mr K would have engaged with more focused educational provision. I accept the Council’s view that education in the community for a young person with Mr K’s complex needs and associated behavioural difficulties would have represented a significant challenge. It is possible Mr K may have been unable, or unwilling, to engage with more structured educational support even if the Council had arranged it.
93. Nevertheless, I consider it likely that the Council’s failure to secure suitable educational provision for Mr K during this period had an impact on his education and contributed to the more general decline in his behaviour and presentation. Indeed, by March 2020, Mr K’s behaviour had deteriorated to such an extent that it was felt his needs could no longer be met in mainstream school. There is evidence in the case records to suggest the lack of structured educational provision contributed to this deterioration.

Education – March to July 2020

94. The support from Provider 1 and Provider 2 remained in place until early March 2020. At this point, both providers withdrew their services as they felt unable to meet Mr K’s needs. Furthermore, Provider 1 said it could no longer offer Mr K a school place.
95. Throughout this period, Mr K remained on roll at his original school. In April 2020 Mr K’s social worker contacted the school to see whether he could attend on a short-term basis during the COVID-19 pandemic. The school advised this would not be possible due to the risks associated with his behaviour.
96. Between March and May 2020, the Council consulted with four potential placements. This included Provider 4. Only one of these providers (Provider 4) was provisionally willing to offer Mr K a place. Three of the providers declined to accept Mr K as they had no space or were concerned about his wider needs.
97. During this period, Mr K was becoming increasingly aggressive towards Ms J and this placed additional strain on their relationship. This led the Trust to refer Mr K to the FCAMHS service at a neighbouring Trust for a forensic risk assessment to inform the search for a placement. This was not ultimately completed until July 2020.
98. The introduction of the national lockdown in March 2020 had a significant impact on Mr K as he struggled to cope with the lockdown and the requirement for social distancing. This increased tension between Mr K and Ms J.
99. The lockdown also made it difficult for the Council to identify suitable interim providers to support him. The situation was exacerbated as Ms J was acting as a carer for other vulnerable members of her family. As a result, she was understandably keen to avoid contact with professionals that would increase the risk of virus transmission.
100. In March Ms J and the Council identified Provider 5 as an interim provider. Provider 5 could not begin supporting Mr K until mid-June, when its staff returned from furlough. At that point, Mr K began to receive 15 hours per week of tutoring support from Provider 5. The Council agreed to fund Provider 5 throughout the summer holidays in recognition of the loss of support following the collapse of the previous arrangements in March.
101. It was not until July 2020 that Provider 4 confirmed a start date for Mr K for 15 hours per week. This was initially set for September 2020. However, it became necessary to push the start date back to early November to give Provider 4 the time to recruit and train new staff.
102. The case records show the Council made significant efforts to identify a suitable placement for Mr K during this period. These efforts were hampered by several factors. These included the complexity of Mr K’s needs, the delayed FCAMHS report and the impact of the national lockdown.
103. When the Council was unable to find a placement for Mr K during this period, it had a duty under Section 19 of the Education Act 1996 to secure suitable interim educational provision for him.
104. It is important to note that the national lockdown also appears to have affected the Council’s search for interim care providers. This limited the capacity of providers to fully assess Mr K’s needs during this period and contributed to the delay in identifying suitable support. Nevertheless, Mr K went without support of any kind between March and mid-June 2020. This was in breach of the Council’s duties under the Education Act 1996 and represents fault.
105. The Council also had a duty under Section 42 of the Children and Families Act 2014 to secure the educational provision set out in Mr K’s EHC Plan. Between May and July 2020, this duty was modified by the Secretary of State to reflect the national closure of schools. The revised duty meant local authorities were required to use their “reasonable endeavours” to secure this provision.
106. Mr K’s special educational needs provision was set out in Section F of his EHC Plan. Much of this provision was specific to Mr K’s mainstream school and centred on a structured learning environment. I found no evidence to suggest the Council used reasonable endeavours to secure alternative provision to meet Mr K’s special educational needs in the community. This was fault by the Council.
107. The Council made efforts to address the lack of educational support provided to Mr K during this period by agreeing to fund the 15 hours per week from Provider 5 throughout the school summer holidays. In my view, this represents a partial remedy for the impact on Mr K of the fault I have identified above.
108. Again, it is difficult to say how successfully Mr K would have engaged with additional education in the community even if the Council had been able to secure it. The social care records show Mr K’s behaviour became increasingly problematic during this period. This may have had an impact on his ability or willingness to engage with education.
109. Nevertheless, the situation caused Ms J significant uncertainty. This is because we are unable to say whether Mr K’s situation would have been improved if additional support had been in place.

Education – July to November 2020

110. Mr K continued to receive 15 hours of support per week from Provider 5 throughout July and August. From September 2020, Ms J used her personal budget to fund a further ten hours of enabling support per week for Mr K from Provider 6. This was a total of 25 hours per week from the beginning of the new school term.
111. These arrangements remained in place until Mr K’s placement with Provider 4 began in early November.
112. I note that only 15 hours per week of this support (from Provider 5) was educational. However, the case records show Mr K was struggling to engage with the educational provision on offer during this period. His behaviour remained challenging during support sessions and at home. This suggests additional educational provision at that stage would not have been appropriate for Mr K.
113. Taking everything into account, I am satisfied the Council provided Mr K with educational provision during this period that was suitable to his needs. I find no fault by the Council on this point.

Social care support

114. Ms J complained that the Council’s social care team failed to support her and Mr K appropriately when he was out of school for a protracted period. In particular, Ms J complained that the Direct Payments she received did not take account of the fact that Mr K was out of school for a protracted period. Ms J said the Council failed to provide appropriate respite care or alternative support.
115. In its response to my enquiries, the Council said that, between January 2019 and November 2020, it provided Ms J with £336.49 per week in Direct Payments. The Council said this money was intended primarily to provide short break respite care for Mr K. The Council acknowledged the respite arrangements ended in late 2019 and early 2020 as respite providers felt unable to meet Mr K’s complex needs. The Council said it allowed greater flexibility in how the Direct Payments could be used during the pandemic. This was in recognition of the fact that Ms J and Mr K could not access the same level of support during this period.
116. In July 2019, Mr K was attending overnight respite care every Friday night. Ms J used her Direct Payments to fund this provision using three different respite providers. Ms J also funded occasional respite care on Saturday nights. This additional respite care increased in frequency once Mr K was no longer attending school.
117. As Mr K remained out of school, his behaviour became more challenging. This led to him spending increased periods of time unaccompanied in the community. Both Ms J and the professionals supporting Mr K were concerned that he was vulnerable to exploitation.
118. In January 2020, a family practitioner began to work with Ms J. This was to support her with implementing a behaviour support plan developed by Mr K’s clinical psychologist.
119. Later that month, Ms J advised the Council that two of the three respite providers were no longer prepared to support Mr K due to his escalating behaviours. The Council began to search for regulated short break placement for Mr K.
120. This situation was also discussed at Child in Need (CIN) meetings in February and March. At the meeting in March, the Council advised that a national children’s charity had no respite provision. The Council also explained that its in-house respite provider had no capacity. Ms J said it would not be possible for Mr K’s father or paternal relatives to support him.
121. Later that month, Mr K’s final remaining respite provider withdrew from supporting him.
122. In the meantime, Mr K began to have unsupervised contact with two adults in the community. This led to extensive involvement from the Council’s safeguarding team and the police. The Council also referred Mr K to its Reducing Exploitation and Absence from Care or Home (REACH) service.
123. In late April, the children’s charity contacted Mr K’s social worker to explain that it had identified a potential private respite provider. The social worker also established possible respite availability with a local children’s home. However, Mr K was unwilling to enter respite at that time.
124. In early May, Ms J told the social worker that she did not want any respite or enabling support until pandemic restrictions had been lifted. This was due to her role as a carer for vulnerable adults in her family.
125. Mr K’s social worker continued to search for a suitable respite provider. In June, the children’s charity confirmed that its potential respite placement would no longer be suitable. The charity also advised that it had no other available carers.
126. In mid-July, the Council extended its search for respite providers to include external providers. The relationship between Mr K and Ms J deteriorated further during this period. This led to Mr K entering emergency foster care briefly later that month.
127. Shortly before Mr K’s return home, his social worker told Ms J that the external provider search had identified two potential providers for short break respite care. Both providers requested sight of the FCAMHS report, which had still not been circulated by this point.
128. One potential respite provider visited Mr K and Ms J at home in late July. This placement did not proceed as the provider was unregistered. The Council’s placements team continued to search for suitable respite providers throughout July and August. However, the search was unsuccessful.
129. Ms J identified a suitable provider who was able to provide Mr K with overnight respite on some Friday nights. She funded this via her Direct Payments. However, Mr K felt this provision lacked the structure of his previous respite placements.
130. In September, Mr K’s social worker identified a potential foster carer who could provide overnight respite care during the week. Ms J was unwilling to consider respite during the week. She explained that Mr K’s Friday overnight respite arrangement had been long-standing and that he reacted well to the structure and routine of this. Ms J was concerned that Mr K would struggle to cope with changes to this routine due to his autism diagnosis.
131. Following a support session in October, Mr K refused to return home. The Council arranged for him to be placed in emergency foster care with Ms J’s consent.
132. The case records show Ms J first raised her concerns about respite provision with the Council in January 2020. Despite this, the Council had still not secured regular overnight respite provision for Mr K by the time he came into the Council’s care in October 2020.
133. There is evidence to show that the Council searched extensively for a suitable respite provider. However, this proved challenging for several reasons. Mr K’s complex needs and increasing behavioural problems meant some providers felt they could not support him. Some providers were concerned Mr K would not be compatible with other children in their care. The delayed FCAMHS report caused additional problems as some respite providers wanted to see this before deciding whether they could support Mr K.
134. The evidence shows Mr K’s weekend respite arrangements an important aspect of his social care support. However, the case records show many respite providers were unable to offer weekend provision. This further reduced the number of potential providers. Furthermore, in May 2020, Ms J told the Council that she did not want Mr K to have respite care until lockdown restrictions were lifted. This is because Mr K was reluctant to observe COVID-10 protocols, such as social distancing and regular hand washing. Ms J was concerned this would place vulnerable family members for whom she was acting as a carer at risk.
135. The situation was complicated by emerging safeguarding concerns related to both Mr K’s unsupervised contact with adults in the community and his deteriorating relationship with Ms J.
136. Nevertheless, the evidence I have seen suggests the Council failed to provide a service to meet Mr K’s assessed needs for much of this period. This was fault by the Council.
137. The case records show the limited respite provision during this period placed Mr K’s relationship with Ms J under greater pressure. The situation was made worse as Mr K was not receiving full-time educational provision for much of this period. This meant Mr K was at home for long periods without structured support.
138. The case records show the Council did attempt to support Ms J and Mr K during this period. Mr K had an allocated social worker and Ms J received regular support from a family practitioner to manage Mr K’s behaviour. Ms J also attended regular CIN meetings to discuss Mr K’s care and education.
139. I also note that, from late July, Ms J secured some overnight respite provision for Mr K using her Direct Payments.
140. In my view, this support went some way to mitigating the impact of the lack of regular respite overnight provision on Mr K and Ms J. However, this situation caused Mr K and Ms J significant distress.

Free school meals

141. In her complaint to the Ombudsmen, Ms J also complained about the provision of free school meals for Mr K for the period during which he was out of school. Ms J said Mr K received free school meal vouchers for the period March to September 2020. However, she said Mr K was out of school for significantly longer than this.
142. Mr K was eligible for free school meals and was in receipt of these while he was attending his mainstream school. Mr K remained eligible for free school meals after he stopped attending the school.
143. The duty to provide free school meals rests with the school with which the eligible child is enrolled. As Mr K remained on roll until October 2020, the school had a responsibility to ensure he received free school meals. The Ombudsmen have no power to investigate this aspect of Ms J’s complaint as it does not relate to the Council’s duties or functions.
144. Nevertheless, the Council did have some limited involvement with the provision of free school meals for Mr K. I have commented on this below.
145. In September 2019, Provider 1 began to support Mr K and was providing him with a meal during support sessions. However, as Provider 1 was not yet registered with Ofsted, it was unable to access free school meals funding. This meant the cost of Mr K’s lunch was taken from the limited budget available for activities.
146. Mr K began to receive support from Provider 2 in November. The case records suggest Provider 2 provided Mr K with a meal during each session.
147. Later that month, Ms J complained to the Council. She requested further clarification regarding the arrangements for Mr K’s meals.
148. In January 2020, as a result of Ms J’s complaint, the SEN team asked Provider 1 to ensure that Mr K was provided with lunch during support sessions.
149. The family practitioner contacted Mr K’s school to arrange for him to have free school meals vouchers between March and September 2020. This was part of the government’s initiative to provide free school meals to eligible children during the school holidays.
150. The case records show the Council did have further limited involvement during late 2020. Ms J wrote to the SEN officer in early September 2020 to request free school meals for Mr K for the new school term.
151. As Mr K was still out of school, the SEN team asked Providers 5 and 6 to provide costings for free school meals as part of their provision. This arrangement was due to begin in late October 2020, by which point Mr K was in the care of the Council.
152. I am satisfied the Council took appropriate action, when approached by Ms J, to ensure Mr K had access to the free school meals to which he was entitled. I found no fault by the Council in this matter.

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Agreed actions

153. Within one month of my final decision statement, the Council will take the following actions.

• Apologise to Mr K and Ms J for its failure to secure suitable full-time educational provision for Mr K between September 2019 and June 2020.
• Apologise to Mr K and Ms J for its failure to secure the special educational needs provision set out in Mr K’s EHC Plan.
• Apologise to Mr K and Ms J for its failure to arrange regular overnight respite provision for Mr K between March and October 2020 to meet his assessed needs.
• Pay Ms J £2,000 in recognition of the impact on Mr K of its failure to provide him with full-time educational provision and special educational needs provision between September 2019 and June 2020. This consists of £200 for each month that Mr K did not receive this provision. This recommendation recognises that the Council did put limited educational provision in place for Mr K during this period. Mr K, Ms J and the Council should work together to use this money in Mr K’s best interests.
• Pay Mr K and Ms J £400 each in recognition of the distress caused to them by its failure to arrange regular overnight respite provision for Mr K. This recommendation reflects the fact that Ms J was unwilling for Mr K to have overnight respite care in May and June 2020. It also recognises that the Council did fund limited overnight respite provision for Mr K from late July 2020. Again, the payment for Mr K should be made to Ms J. Mr K, Ms J and the Council will then work together to use this for his benefit.

154. Within three months of my final decision statement, the Council will work with Mr K, Ms J and partner agencies to produce an up-to-date EHC Plan for Mr K that accurately reflects his current needs and how these will be met.

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Final decision

155. I found fault by the Council in terms of its failure to secure full-time education and regular overnight respite provision for Mr K.
156. In my view, the actions the Council has agreed to undertake represent a reasonable and proportionate remedy for the injustice caused to Ms J and Mr K by this fault.
157. I found no fault by the Trust with regards to the care it provided to Mr K.
158. I have now completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman