Derby City Council (21 006 237)

Category : Education > COVID-19

Decision : Upheld

Decision date : 19 Apr 2022

The Ombudsman's final decision:

Summary: Mr and Mrs B complained the Council did not secure the social care provision in their son’s child in need and education, health, and care plans. They said their son missed provision and this caused the family distress. The Council was at fault for failing to secure their son’s provision. The Council will make up the lost provision to remedy the injustice to them and their son.

The complaint

  1. The complainants, who I shall refer to as Mr and Mrs B, complained the Council did not secure the social care provision in their son’s child in need and education, health, and care (EHC) plans from February 2020. They also complained its administration of this provision was poor. They said their son missed provision and this caused the family distress.

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What I have investigated

  1. I investigated whether the Council secured the social care provision in D’s child in need and EHC plans since February 2020.
  2. I did not investigate the Council’s management of the EHC procedure or the delivery of special educational needs provision in section F of that plan. This has already been investigated by the Ombudsman as part of a separate complaint.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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

  1. I considered:
    • Mr and Mrs B’s complaint and the information they provided;
    • documents supplied by the Council;
    • relevant legislation and guidelines; and
    • the Council’s policies and procedures.
  2. Mr and Mrs B and the Council commented on a draft decision. I considered their comments before making my final decision.

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What I found

Legislation and Guidance

Child in need

  1. The Children Act 1989 sets out the duties on councils to ensure children are kept safe and their welfare is promoted.
  2. Section 17 says a child is in need if they are unlikely to achieve or maintain a reasonable standard of health or development without services provided by the council. Councils can provide services for the whole family or for any individual member of the family if it is provided to safeguard or promote the child’s welfare.
  3. When a council assesses a child as being in need, it supports them through a child in need plan.
  4. Direct payments for social care are monetary payments made by Council’s under section 17 of the Children Act 1983. Direct payments must be offered as an alternative to receiving services from the Council. The payments can then be used to provide care and support services for child or young people.

Education, health, and care plans

  1. A child with special educational needs may have an education, health and care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years give council’s information about its duties. Councils must make sure the provision in a child’s EHC plan is in place (s.42 Children and Families Act 2014).
  2. The EHC plan is in sections. Section H records any social care provision the Council must secure for a child or young person.

COVID-19

  1. From March to May 2020, England was in the first of three national lockdowns. People could only leave their home for limited purposes including travelling to and from work, but only where this was absolutely necessary. In May 2020, the Government said people who could not work from home should return to the workplace. In September 2020, the Government announced new restrictions including working from home. A second national lockdown came into force from November to December 2020. The third national lockdown was in place from January to March 2021.

Statutory children’s complaint procedure

  1. Section 26(3) of the Children Act, 1989 says all functions of the local authority under Part 3 of the Act may form the subject of a complaint under the statutory complaints procedure.
  2. A complaint may arise about statutory social services functions, including:
    • delivery or non-delivery of services including complaints procedures;
    • quantity, frequency, change or cost of a service; and
    • the impact on a child or young person of the application of a local authority policy (Department of Education, 2006, Statutory guidance for local authority children’s services on representations and complaints procedures).
  3. The handling and consideration of complaints under the Children Act 1989 consists of three stages: Stage 1 - Local Resolution, Stage 2 – Investigation which includes independent oversight and Stage 3 - Review Panel (Department of Education, 2006, Statutory guidance for local authority children’s services on representations and complaints procedures).

What happened

  1. This chronology includes key events in this case and does not cover everything that happened.
  2. Mr and Mrs B’s child, D, has Down’s syndrome and Autistic Spectrum Disorder (ASD).
  3. In 2017, the Council issued a final EHC plan for D. It included the following social care provision:
    • Three and a half hours a fortnight at a Saturday club during term-time.
    • One trip each week, varying in time between four- and five-hours during school holidays.
    • Overnight stay with Link Care approximately once every six weeks.
  4. In March 2020, the Council completed a single assessment for D. The Council agreed D should have:
    • Link Care one weekend a month, or two nights a month respite; and
    • one community support session each week during school holidays at a holiday club.
  5. D stopped attending school in March 2020 because of the national COVID-19 lockdown.
  6. In May 2020, the Council held a child in need review for D. D’s social worker said D’s overnight support from Link Care was paused because the family were shielding. The family support worker advised the Saturday club D attended did not run during the COVID-19 lockdown.
  7. D returned to school in July 2020 once lockdown restrictions were lifted.
  8. The Council held a child in need review for D in December 2020. Mr and Mrs B reported the Saturday club was still not running, the hours of the holiday club had been reduced and it was being run fortnightly rather than weekly, and D had only been to Link Care three times in 18 months. They said if they had direct payments, they would be able to make up this provision at some point, but their support had just disappeared.
  9. Their family support worker explained that because of lockdown the Council had to reduce the number of support hours allocated to D because group sizes were smaller to create safety bubbles. Their social worker told Mr and Mrs B she completed a risk assessment for Link Care for D in August 2020 and decided it could go ahead. She apologised for not telling Mr and Mrs B about this sooner. The minutes noted that Link Care had not been re-established because Mr B had to isolate, and the first date offered clashed with Saturday club. The Council said it would consider providing Mr and Mrs B with direct payments. Attendees agreed to hold an early network meeting to get clarity on the issues raised and develop an action plan.
  10. In February 2021, the Council issued a final amended EHC plan for D. The EHC plan included the following social care provision:
    • Three and a half hours support a fortnight during term-time;
    • Access to support for five hours a week during school holidays; and
    • support from Link Care approximately once a month, including an overnight stay.
  11. D’s social worker was to monitor the provision. Mr and Mrs B did not receive a copy of the plan until March 2021.
  12. In March 2021, the Council held a child in need review. The Council had put in place an extra two hours of support for D at an after-school club each week during term-time; Mr and Mrs D said this was helpful. D’s Link Care carers said they had taken D on a couple of days out and this had gone well. The Council noted it explored direct payments with Mr and Mrs B but they did not think these would be helpful.
  13. The Council wrote to Mr and Mrs B to say it was going to reduce D’s five hours of support during school holidays to four.
  14. The Council held a child in need review for D in August 2021. Records note Link Care had resumed. D had received support during the school holidays. Mr and Mrs B complained this was often arranged last minute. The Council said the Saturday and after-school clubs would resume. In total the Council arranged for D to have eight hours of support a fortnight during term-time.
  15. In November 2021, the Council held a network meeting for D. Mr and Mrs B reported the after-school and Saturday clubs were going well.

Complaint investigation

  1. Mr and Mrs B complained about the lack of social care provision for D.
  2. The Council responded to Mr and Mrs B’s complaint in April 2021. Its complaint investigation found:
    • before COVID-19 restrictions, D was allocated a place at the Saturday club which was one session every other Saturday (each session was three to four hours). During school holidays D had a session every week;
    • no Saturday club sessions had been delivered since the first lockdown in March 2020 because of government restrictions, and because staff within the community support team became a crisis response service during lockdown periods;
    • the community support team tried to restart the Saturday club from January 2021 however government guidance changed, which prevented the club from running; and
    • from October 2020 to December 2020 after-school sessions were offered, and D attended these sessions weekly for two hours. However, these were stopped again because of government guidance.
  3. It said it understood the pressures put on families by the COVID-19 restrictions and the resulting reduction of services. It advised once restrictions were lifted, the Saturday club would restart.
  4. Mr and Mrs B were unhappy with the Council’s response and asked it to consider their complaint at stage two of the procedure.
  5. The Council responded in June 2021. It stated:
    • the after-school provision for D started in November 2020 and was a substitute for the Saturday club which stopped because of COVID-19;
    • it calculated the allocation of resources in sessions rather than hours and therefore the number of hours in D’s EHC plan was misleading;
    • COVID-19 created staffing and resource difficulties which restricted service delivery; and
    • the Council had secured extra after-school support for D to replace his lost provision.
  6. The Council said it regretted the service could not always respond in the usual way.

Analysis

  1. The Council had a duty to secure the social care provision in D’s child in need and EHC plans under Section 17 of the Children Act 1989.
  2. Between May and June 2020, during the first COVID-19 lockdown, the Council did not secure any social care provision for D and there is no evidence it considered alternatives. This was fault.
  3. In July 2020, D returned to school. The Council did not secure the social care provision in D’s EHC or child in need plan between July 2020 and January 2021. He missed five holiday sessions and six term-time support sessions. In total he missed a minimum of 42 hours of provision during this period. In addition, he did not receive any Link Care stays; he should have received six.
  4. In February 2021, the social care the Council had to secure changed because it issued a new EHC plan. Between February and April 2021, the Council failed to deliver three holiday sessions and eight term-time support sessions, a total of 43 hours. It did not provide any Link Care stays; D should have had three.
  5. Between May and December 2021, the Council reinstated D’s provision. It secured D’s holiday provision and his fortnightly term-time provision. It put in place a minimum of an extra two hours of support each week to make up for the provision D missed. Between May and December 2021, the Council provided a minimum of 36 hours of extra support. The Council did not provide details of the Link Care stays secured in this period.
  6. By the end of December 2021, in total the Council owed D a minimum of 44 hours of holiday and term-time support. The Council said it would continue to offer D an extra two hours of support each week to make up the outstanding hours. The Council also owes D Link Care stays. It has not provided evidence of how many Link Care stays it secured or how it would make up this lost provision.
  7. I recognise the national lockdowns would have affected the Council’s ability to secure the provision in D’s plans, however, there is no evidence the Council considered making alternative arrangements to provide D with support and respite during the lockdowns. Failing to secure the provision in D’s plans or to offer an alternative was fault.
  8. D’s EHC plan refers to hours of support, not sessions. In the Council’s complaint response, it said it secured the provision in sessions and not hours; this was fault. The Council has a duty to secure the provision as recorded in D’s EHC plan, which is in hours. If the Council wanted the provision to be calculated in sessions rather than hours, it should have recorded it this way in D’s final EHC plan so Mr and Mrs B had the opportunity to appeal.
  9. These failures caused the family avoidable distress. D could not access the respite and support he was assessed as needing and Mr and Mrs B did not get a break from their caring responsibilities. This put unnecessary pressure on the family and Mr and Mrs B as D’s carers. It also meant Mr and Mrs B had to spend time chasing the Council to get it to fulfil its legal duties.
  10. The Council’s duty to secure the provision in D’s child in need and EHC plans came under Section 17 of the Children Act. Therefore, the Council should have used the statutory children’s complaint procedure to investigate the complaint. Not doing so was fault. Mr and Mrs B lost the opportunity to have their complaint considered at stage two and three of the statutory complaint procedure, which creates uncertainty about whether their complaint could have been resolved sooner without having to approach the Ombudsman.

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Agreed action

  1. Within one month of the final decision, the Council will:
    • Apologise to the family for the injustice caused by its failure to secure the provision in D’s plans and for not considering the complaint using the statutory children’s complaint procedure.
    • Calculate D’s provision in hours until an amended EHC plan is issued that says otherwise.
    • Provide Mr and Mrs B with a schedule showing how D’s lost support hours between July 2020 and December 2021 will be delivered.
    • Provide Mr and Mrs B with a schedule showing how D’s lost Link Care stays will be delivered. If Mr and Mrs B feel it would not be in D’s interest to provide extra Link Care stays, the Council should provide a financial remedy of £100 for each missed Link Care stay between July 2020 to December 2021. This is a symbolic payment for the lost provision.
    • Pay Mr and Mrs B £500 for the distress caused by the Council’s failure to secure the respite provision in D’s EHC and child in need plans.
    • Issue guidance to staff to remind them the Council has a duty to secure the provision in EHC plans as described in the plan, for example, in hours if this is how the provision is recorded.
    • Remind staff involved in complaint handling complaints about lost provision under section 17 of the Children Act should be investigated under the children’s statutory complaints procedure.
  2. The Council should provide the Ombudsman with evidence it has completed these actions.

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Final decision

  1. I have completed my investigation and uphold Mrs and Mr B’s complaint. Mrs and Mr B and their son D were caused injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Parts of the complaint that I did not investigate

  1. I did not investigate the Council’s management of the EHC procedure or the delivery of special educational needs provision in section F of D’s plan. This was investigated by the Ombudsman as part of a separate complaint.

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Investigator's decision on behalf of the Ombudsman

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