Summary: The Council was at fault in failing to accurately reflect the decision to remove children’s social care provision from Mr W’s son’s Education, Health and Social Care Plan. This caused Mr F injustice in the form of avoidable frustration and time and trouble as he had to complain to this office in order to resolve the matter. The Council will apologise and make a payment of £200 to recognise this.

The complaint

1. The complainant, whom I shall refer to as Mr W, says the Council removed social care provision from his son’s Education, Health and Social Care Plan and then failed to formally amend the Plan following the annual review as it should have done.

Back to top

The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
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. 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)

Back to top

How I considered this complaint

5. I discussed the complaint with Mr W and considered the written information he provided with his complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
6. I gave the Council and Mr W the opportunity to comment on my draft decision. I took account of the Council’s response before reaching my final decision. Mr W did not provide any comments on the draft decision.
7. 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.

Back to top

What I found

What should have happened

8. 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 (Sections B, F or I), or name a different school. Only the tribunal can do this.

9. Section B of EHC plan details the child’s special educational needs. Section F details the special education provision required and Section I details the name and type of educational provision that will be made.

10. We can consider the other sections of an EHC plan. This includes Section D which details the child’s social care needs that are related to his special educational needs or disability, and section H2 which details any social care provision “reasonably required by the learning difficulties or disabilities which result in the…child having SEN”.
11. Decisions which may be appealed to the tribunal include if a council decides not to amend an EHC Plan following an annual review. From April 2018, as part of a national trial, parents who are dissatisfied with the sections of the plan relating to social care, and who have not been able to resolve their disagreement locally, can take their appeal to the SEND Tribunal and the Tribunal can recommend changes. However, the appeal must also involve an appeal about the education parts of the EHC plan (Sections B, F or I). So, a parent who was only dissatisfied with part H2 of a plan would not have a right of appeal to the Tribunal.

12. Paragraph 9.137 of the SEN Code states that “For social care provision specified in the plan, existing duties on social care services to assess and provide for the needs of disabled children and young people under the Children Act 1989 continue to apply”.

13. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

14. Once provision is written in to an EHC plan, it is legally enforceable. If it is in the education or social care provision sections of the EHC plan, then the LA must ensure it is provided.

15. EHC plans must be reviewed at least annually. The annual review considers whether the provision remains appropriate and whether progress is being made towards the targets in the plan. The SEN Code, which is statutory guidance on implementing the legislation around SEN assessment and provision, says: “The first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review, and the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC plan or previous review”. A review ends only once the Council has issued the amended plan or provided a written decision that it will not amend the plan. Either decision carries a right of appeal.
16. Paragraph 9.167 of the SEN Code confirms that annual reviews should include a review of social care provision and that the Council must write to the parents if it decides to amend the plan following a review. Paragraph 9.193 of the Code refers to making amendments to changes in social care provision and of the Council’s duty to advise parents of such proposed changes and to issue an amended plan.
17. Under section 17 of the Children Act 1989 a child will be considered a child in need if he is disabled. Services may be provided to a child under section 17 if they will safeguard or promote his welfare. Respite care for a disabled child may be provided under section 17. Direct payments may be put in place to enable parents/carers to employ a Personal Assistant to provide services such as respite care. The Council completes an assessment to determine whether/what services a child may need under section 17. The Council’s policy on provision of services to children under section 17 says that children in need by virtue of having a disability will have “An annual review of their needs will be undertaken by a social worker completing a child and family assessment in collaboration with the child and family/other professionals in order to ensure all their needs are met and the short breaks provision/care package remains purposeful/suitable”.

What happened

18. Mr W’s child, Y, is eight years old. He is disabled and has an EHC Plan.
19. The last annual review of the EHC plan took place in October 2018. No amendments were made and the Council said it told Mr W that it would not amend the plan and that he had a right of appeal to SEND against the decision to not amend the plan.
20. The Council says Y’s EHC Plan has not been altered since 2017. Section H2 of the Plan, which details social care provision, confirms that Y “…is to receive four hours a week as a direct payment”. It says this provision was under review by the Disabled Children’s Team in 2017.
21. A plan related to Y and issued by the Children’s Services department covering the period November 2016 to August 2018 confirmed that four hours a week direct payments were being provided by Children’s Services to enable Mr W and his wife to employ a carer to look after Y whilst they spent some time with Y’s sibling.
22. In December 2017 a senior officer in the Children with Disabilities’ Team (which is part of the Children’s Services department) wrote to Mr W putting forward three dates for a social worker to complete a new children and families assessment and a carers’ assessment.
23. In July 2018 the senior officer wrote to Mr W again. In her letter she stated she had written to him in October 2017, December 2017 and May 2018 to try to arrange an appointment for the allocated social worker to complete an annual update of child and family assessment to review Y’s needs and the care package of support offered. She said this was to ensure that the level of support offered remained appropriate. She offered three more dates in July and August and said that if she did not hear from Mr W by late August the direct payments would be ceased and the Children with Disabilities Team would end its involvement.
24. As I understand it Mr W did not agree to the review and so the support package was ended in August 2018.
25. The Council acknowledges that the EHC Plan still states that Y should receive four hours of direct payments but also points that the 2017 plan also stated that this provision was under review by the Children with Disabilities Team. The Council confirms that the Children with Disabilities Team ended its involvement in 2018 because the family would not engage in a necessary review of needs/provision. The Council confirms it is still happy to complete this review process if the family agrees.
26. In October 2018 the annual review of the EHC Plan took place. The Council’s report of the annual review notes under section D – Social care provision – that “Needs have not changed. However, the following change has taken place”. The report then shows the statement “The family receives Direct Payments for four hours weekly” as crossed out. This clearly indicates the payments were no longer in place. The report then states that H2 provision had been removed.
27. The letter to Mr W following the Annual Review stated that the Council had no intention of amending sections B, F or I of Y’s EHC plan. It provided information about the SEND Tribunal including information about the national trial.
28. The current position is that the Children with Disabilities’ Team withdrew the provision of the direct payments in 2018 as a result of the family’s refusal to participate in a review/new assessment. However, though it seems the Children with Disabilities Team removed this provision in August 2018 and the annual review of the EHC plan that took place in October 2018 acknowledged this removal, the EHC plan was not amended to reflect the fact that the provision was no longer being made. The provision remains detailed in the EHC plan.

Is the Council at fault and did this cause injustice?

29. The Council stopped providing the four hours a week direct payment around August 2018 but did not remove the provision from section H of Y’s EHC Plan following the annual review in October 2018. Paragraph 9.193 of the Code confirms that it would be expected that a change to social care provision would be a change that justifies amendment to a plan and for the usual process for this to be followed. For this reason, I conclude the Council failed to amend section H2 as it should have done and this amounts to fault. The Council should have amended the plan to remove the provision as reflected in the notes of the annual review meeting in 2018 which shows the provision crossed out. Whilst it was apparently accurate for the Council to write to Mr W following the annual review stating no changes were proposed to section B, F or I, it was also required to advise him of any changes proposed to section H2 and it did not do so.
30. There are no grounds for me to conclude that there was fault in the children’s social care team withdrawing provision as a result of the family’s refusal to participate in a review of needs. Its policy allows for this and the Council needs to know it is providing the right services for children and has to be accountable for the money it spends on this.
31. The Council says it told Mr W that he could appeal to the SEND Tribunal about the refusal to amend the EHC plan. I am unclear however why Mr W should have to appeal to the Tribunal to amend something which would result in the confirmation of the removal of a provision which would otherwise remain in the Plan and indicate that it remained in place. Ordinarily an appeal about a refusal to amend would be about a council’s refusal to provide additional services or to remove something the parent did not want in the plan so there would be a good reason for the parent to appeal. That was not the case here. In addition, I have carefully considered whether Mr W did have a right of appeal to the Tribunal: I am unclear whether Mr W wanted to appeal about any of the education provision in the Plan but it appears he probably did not as the only issue he has expressed dissatisfaction with is the failure to amend the Plan to reflect the actual provision in terms of the social care provision. On this basis I do not believe he did have a right of appeal to the Tribunal and so consider this office has jurisdiction to consider the non-provision of the service.
32. The injustice that flows from the identified fault (the failure to amend the plan) is that the EHC plan was inaccurate in stating that a service was being provided when it had been withdrawn. The failure to remove it from the plan meant the Council was obliged to continue to provide it but it did not, relying on the decision of the children’s services team to withdraw the service because the family had refused to participate in the review. As I have said I do not consider there was fault in the decision of the Children’s Services Team to remove the provision given Mr W’s refusal to participate in the reassessment of needs.
33. I take into account Mr W’s own behaviour in this process when considering what would have happened had the fault not occurred. So, I will now consider what would have happened if the Council had correctly reflected the change in section H2 of the EHC plan. As I have established, Mr W did not have a right of appeal against this removal as he did not wish to appeal against any of the education provision. So, he could then have complained to this office about the removal of the social care provision which is what led to the removal of the provision in section H2. Had he done so, I would have concluded that there was no fault in this decision as Mr W was given numerous opportunities to participate in the assessment but did not do so and had been warned of the consequences of not participating. The Council’s policy allows for it to review provision and need and I accept it should do this to ensure that the provision continues to meet needs and to be accountable for its spending of a limited section 17 budget. I would not therefore have found fault in the decision to remove the provision without a review having been completed.
34. I cannot therefore conclude that Mr W missed out on provision that he would have received had it remained in the EHC plan. The provision was removed as part of a different process about which I do not find fault. However, there was fault in the failure to amend the EHC plan. I do not consider that Mr W lost out on a right of appeal to SEND as there is no suggestion that he wanted to appeal on grounds B, F or I and so he had no right to appeal against H2 on its own. So, the only injustice to Mr W was the frustration caused by the Council’s failure to amend the plan as it was required to and the avoidable time and trouble he was then caused in having to complain to this office in order for the matter to be resolved.

Agreed action

35. The Council will amend the EHC Plan and follow the correct processes for this.
36. To recognise the frustration and avoidable time and trouble caused to Mr W in having to complain to this office in order to have the matter resolved, the Council will apologise and pay him £200.
37. The Council will complete the above actions within one month of the date of the final decision on this complaint.

Back to top

Final decision

38. Subject to further comments by Mr W and the Council, I intend to reach a decision that there was fault in the Council’s failure to amend the EHC plan following the annual review in October 2018. This caused Mr W avoidable frustration and time and trouble.

Back to top

Investigator's decision on behalf of the Ombudsman