Summary: Mr X complained the Council failed to provide services and support for his son, F who has severe disabilities and a life limiting condition. The Council was at fault. It failed to provide the educational provision for F in line with his Education, Health and Care Plan and delayed consulting for an alternative placement between September 2018 and March 2019. The Council also failed to carry out a parent carer needs assessment on Mr X in line with relevant legislation and statutory guidance and failed to properly handle his complaints. The Council agreed to pay Mr X a total of £3900 to use for F’s benefit, and £350 to recognise the injustice caused to him. It also agreed to carry out service improvements and carry out a parent carer needs assessment on Mr X.

The complaint

1. Mr X complained the Council failed to provide services and support for his child, F, who has severe disabilities and a life-limiting condition, and also to him in his role as a carer for F. Mr X complained:
• The Council failed to ensure F received provision in line with his Education, Health and Care Plan (EHC Plan) between August 2018 and August 2019.
• Failed to carry out an adequate safeguarding investigation following Mr X's referral about incidents involving F at his school.
• Failed to offer him a parent carer needs assessment.
• Failed to carry out and progress home adaptations.
• Failed to respond to Mr X's complaints in line with the Council's complaints procedure and the children's statutory procedure.
2. Mr X said the Council's faults caused F loss of education opportunity and distress. Mr X said he has suffered distress, frustration, uncertainty and time and trouble.

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What I have investigated

3. I have investigated Mr X's complaints about
• the EHC Plan provision
• delays in consulting for an alternative placement
• the parent carer needs assessment, and
• how the Council dealt with his complaints.
4. I have not investigated the other matters for the reasons explained in paragraph 81.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. 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. Mr X appealed to the SEND tribunal in July 2019 about the educational provision outlined in F's EHC Plan. Mr X also appealed about F's social care provision and about the provision of home adaptations. Therefore, although referred to, I have not investigated these matters as Mr X has appealed about them to the SEND tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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
10. 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

11. I spoke to Mr X about his complaint and considered the information he provided.
12. I wrote to the Council and considered its response to my enquiry letter.
13. Mr X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

The law and guidance

Alternative provision

14. Section 19 of the Education Act 1996 says Councils must arrange suitable full-time education, or education adapted to the student's ability and needs, for pupils who cannot attend school because of illness, exclusion or otherwise.
15. The Department for Education issued guidance entitled 'Alternative Provision'. This guidance says 'Local authorities are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who - because of illness or other reasons - would not receive suitable education without such arrangements being made'.
16. The courts have ruled that what is 'suitable education' is a matter for the council to decide. Whether an alternative placement is 'suitable' is not based on the parent or child's view but upon objective consideration of whether the education offered is reasonably possible or reasonably practicable for the child to access.

Education, Health and Care Plans (EHC Plan)

17. Children with complex needs may require an Education, Health and Care Plan (EHC Plan). This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
18. Councils have a legal duty to ensure the special educational provision in section F of an EHC Plan is delivered from the date they issue a final Plan. This duty is non-delegable.
19. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the Plan. The local health care provider will have the duty to deliver the health care provision.
20. The Ombudsman cannot investigate the Council's decision whether to conduct an assessment for an EHC Plan, nor can it investigate the content of a Plan. These decisions are appealable to the Special Educational Needs and Disability Tribunal (SEND).
21. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within a Plan.
22. Councils must review an EHC Plan every twelve months. Reviews must focus on the child's progress towards targets in the Plan and on what changes might need to be made to help the child achieve those outcomes. Councils can require a school to convene and hold a review meeting on their behalf. The Special Educational Needs and Disability Code of Practice says reviews are generally most effective when led by the school. The Council must be invited to attend a review meeting.
23. Councils must decide whether to maintain the EHC Plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting. It must then write to the parents/ young person setting out its decision. The Council should issue the final amended EHC Plan or the maintained Plan within eight weeks of this decision letter.
24. If there is a dispute about the EHC Plan, mediation can be a way of settling the dispute. It usually involves a meeting with the council and an independent mediator who will try and help reach an agreement on the disputed points. Representatives from the school or college may also attend the meeting.
25. Decisions to amend or cease a plan can be appealed to the SEND Tribunal.

Child in Need

26. Section 17 of the Children Act 1989 imposes a duty on the Council to safeguard and promote the welfare of children within their area who are 'in need'. A child in need is defined in the Act as a child who is unlikely to achieve or maintain a satisfactory level of health or development or their health or development will be impaired, without the provision of services; or a child who is disabled. The Council undertakes an assessment of the child's needs to determine what services to provide and what action to take.

Protecting children from harm

27. A Council has a duty to investigate if they have reasonable cause to suspect that a child who lives in their area is suffering, or is likely to suffer, significant harm. This duty comes under Section 47 of the Children Act
28. A Council must have reasonable cause to suspect that a child is suffering or is likely to suffer harm before it can enquire. The Council cannot investigate to see if there is a problem unless it has reasonable cause for concern.

Parent carer needs assessment

29. Councils must assess whether a parent carer of a disabled child whom they have parental responsibility for has needs for support if either:
• It appears to the Council that the parent carer may have needs for support, or
• The Council receives a request from the parent carer for support.
30. The assessment considers parent carer circumstances and determines the parent's level of needs. The assessment enables Councils to come to an informed decision about the holistic package of support the disabled child and their family require.

Complaint handling

31. The statutory children's complaints procedure sets out the procedure Councils must follow to investigate complaints about Children's Services. It has three stages:
• Local resolution by the Council (Stage 1);
• an investigation by an independent investigator who will prepare a detailed report and findings (Stage 2). The Council then issues an adjudication letter which sets out its response to the findings; and, if the person making the complaint asks
• an independent panel to consider their representations (Stage 3).

The law says that when a Council investigates a complaint under this procedure, it must consider the complaint at all three stages, if the complainants requests this.

32. The Council's corporate complaints procedure has three stages.
• Stage 1 - where complaints are dealt with at departmental level.
• Stage 2 - if the customer is not satisfied at stage 1, an independent investigation is carried out by the corporate complaint's manager.
• Stage 3 - If the customer is still dissatisfied, the customer can ask for a review panel to consider the details of their complaint and decide if further action is necessary.

What happened

Background

33. Mr X has shared parental responsibility for his son, F, who is 9 years old. Mr X is separated from F's mother. F has a life limiting illness and severe disabilities, which means he is blind, deaf and immobile. F spends half his time each week with Mr X and the other half which his mother. F is dependent on his parents and carers for all aspects of his life. F has social care and health support at both Mr X's and his mother's home.
34. F attends a special school and has an EHC Plan which specifies the provision and support he requires during the school day.
35. Mr X complained to the Ombudsman in October 2019. His complaint consisted of several elements around the Council's services and support of F. While this complaint is made by Mr X, it is important to state that F's mother was involved in many of the decisions. However, I have only referred to Mr X in the body of this document.

Complaints about F’s EHC Plan and the school

36. F has an EHC Plan. The Council held an annual review of F's EHC Plan in January 2018. The Council issued F's amended EHC Plan in February 2018. In April 2018 Mr X disagreed with the provision outlined in the Plan and requested mediation. The main concern was around F's 1:1 support at school. Mr X was concerned about the role of the 1:1 support. Mr X said 1:1 provision should be intensive to meet F's needs. Mr X also raised concerns about adaptations and equipment at his home which he said he required to keep F safe.
37. In June 2018 the records show that following confirmation of continuing health care support for F's 1:1 support in school the issues around this were resolved. The Council amended F's EHC Plan to include provision for a 1:1 carer during the school day for 32.5 hours each week. F's EHC Plan stated he would stand five times per week for 45 minutes while at school and would walk each day if well enough to do so. The plan included a block of sensory swim sessions, accompanied by his 1:1. It also stated F should wear his hearing aids at the times he had the intensive support.
38. Mr X agreed to the amended Plan in July 2018, and in August 2018 the Council issued a final version. Mr X said he did not agree with it but felt forced into accept the plan. However, records show Mr X was dissatisfied with aspects relating to home adaptations and not educational provision at this point.
39. In September 2018, Mr X raised several concerns with the School and the Council. He said:
• F was not receiving provision in line with his EHC Plan
• The school was refusing to ensure F walked everyday
• F was not having the 1:1 support outlined in the Plan
• The school did not have proper safeguarding in place to ensure F could wear his hearing aids and there was an incident where F nearly swallowed one of them
• The school was leaving F in wet bibs and he had also come home with an inflamed and spotty bottom due to being left wet and soiled for long periods
• The school were regularly leaving F in his leg splints which had left him in pain.

Mr X said the lack of provision was unacceptable and the lack of basic care was a safeguarding matter.

40. The Council wrote to Mr X and told him that it had contacted the School about his concerns and was waiting for a response. The school wrote to Mr X in response to his concerns. It said it was complying with the provision set out in F's EHC Plan. The School said neither F, nor any other student at the school had a named 1:1 and in its view, ring-fenced 1:1 support could be counterproductive. The School acknowledged the incident where F nearly swallowed one of his hearing aids. The School said it had investigated the matter and, in its view, it was a historic incident. It said it had measures in place to manage F wearing his hearing aids. The School said it would ensure F's bib was regularly changed and said at no time was F ever left wet on the School premises. The School said it took its duty of care seriously and refuted Mr X's allegations.
41. The Council said it was clear at this point that F's placement at the School was at risk. The Council therefore agreed to an early annual review of F's EHC Plan. The Council agreed in November 2018 to consult for an alternative school for F.
42. Mr X continued to have concerns about F's care at the school and raised these with the Council in January 2019. He said F was often wearing incorrect leg splints, returning home with clothes wet through from dribble, and also returning home wet. Mr X said the Schools care of F was neglectful and was leaving him at risk of infection. Mr X repeated his concern that F was not receiving the provision set out in his EHC Plan. The Council decided to carry out a Child and Family Assessment and the school should investigate Mr X's concerns and respond to the parents following its investigation.
43. Mr X wrote a formal complaint to the Council in January 2019, however the records show the Council did not respond to the complaint. The complaint was about the Council's failure to ensure F received the provision set out in his EHC Plan.
44. The school carried out an investigation and wrote to Mr X with the outcome in February 2019. It recognised it had not used F's splints correctly and also accepted F was left in wet bibs on occasions. The School said it had carried out a new risk assessment and put measures in place to prevent reoccurrence of the incidents.
45. Mr X was unhappy and made a safeguarding referral to the Council which was referred to the Local Authority Designated Officer (LADO). Records show the LADO decided the referral would not meet the criteria for a child protection investigation and felt it was a matter for the school and its governors to investigate. The school had concluded the incidents were not intentional and were not safeguarding concerns.
46. Mr X remained unhappy and removed F from the school in March 2019.
47. The Council completed its Child and Family assessment in March 2019. The Council acknowledged that the complaints raised by Mr X were not one offs, and he had a history of reporting concerns to the school. The Council said the Governing body was investigating how the school managed its investigation. The Council confirmed there were no safeguarding issues within F's homes. The assessment did however state F was being 'discriminated and disadvantaged' by not being able to use his hearing aids continuously. The Child and Family assessment recommended the governing body feedback to the Council with the outcome of its investigation and the Council should ensure F received the provision in his EHC Plan following transition to an alternative educational setting. It said no individuals have been identified as causing F any harm at this time.
48. The Council held meetings following the conclusion of the Child and Family assessment. It was satisfied with the school's actions and the processes it had put in place following the outcome of the investigation.
49. The Council found an alternative school, School A which could meet F's needs in March 2019, but F was unable to start until September 2019. The Council offered F interim provision at School B from March 2019. Records show however that Mr X declined the offer of the interim placement at School B as he felt it could not meet F's needs.
50. The Council amended F's EHC Plan in April 2019 to show School A as the new placement. The Council continued to offer interim provision at a different school. Records show the School also offered F the use of its resources, such as sensory swim sessions.
51. Mr X complained to the Council again in April 2019. He said:
• The Council had poorly handled his complaint about safeguarding matters at the school and he remained dissatisfied with the outcome
• The Council was wrong to say the school was suitable for F despite F coming to repeated harm and the school not providing the provision in the EHC Plan
• The Council failed to respond to his complaint in January 2019
• The Council had failed to properly consult him in its search for an alternative placement
• The Council's offer of interim education for F whilst he was out of school was inappropriate and it had failed to show how the interim provision would meet F's needs.
52. The Council's responded to Mr X in June 2019 and told him it would not put his complaint through its procedure on the basis that its various departments have already explained their positions on the matters. It said it had a clear plan for F's transition to School A in September 2019. The Council said the school had appropriately investigated the safeguarding concerns. The Council said if Mr X's ongoing concern was about the named school in F's EHC Plan then he should appeal to the SEND tribunal, and it was not appropriate for the Council's complaints procedure.
53. In July 2019 Mr X submitted an appeal to the SEND tribunal. The matters appealed were about the accuracy of F's SEN and the lack of detail as to how School A would deliver F's provision. Mr X also appealed about social care provision and about the Council's handling of his request for a Disabled Facilities Grant to fund adaptations to Mr X's home.

Mr X’s request for a parent carer assessment

54. In June 2019 Mr X asked the Council to carry out a parent carer needs assessment. Mr X said he wanted the assessment to consider his need to earn an income and his own health needs. Mr X said he was unable to provide financially for F because he had no income and did not claim benefits. Mr X said he relied on his wife as the only source of income. The Council considered Mr X's request.
55. The Council wrote to Mr X and informed him the Council would not carry out an assessment, and that Mr X should seek advice about his entitlement to benefits.
56. In response to my enquiry letter the Council said it did not offer standalone parent carer assessments, but instead considered a parent's needs as part of the wider assessment process. The Council said it incorporated the parent's needs into a Child and Family Assessment. The Council said Mr X's referral for a parent carers assessment did not meet the threshold for a Child and Family assessment in terms of safeguarding, therefore it advised him to contact the DWP.
57. F started at School A in September 2019 and records show he has settled in well and is receiving provision in line with his EHC Plan. Mr X's appeal was heard by the SEND tribunal in January 2020.
58. Mr X remained unhappy and complained to the Ombudsman.

My findings

59. There were several elements to Mr X's complaints, therefore I have separated my findings on each issue below for ease of reading.

Failure to provide F with provision as set out in his EHC Plan between September 2018 and March 2019

60. The evidence shows the school did not provide the provision set out in F's EHC Plan between August 2018 and March 2019, when Mr X removed him from the School. Mr X first raised concerns in September 2018. Records of mediation show the Council note that the lack of School funding were not good enough reasons for failing to provide the provision. Following Mr X's concerns the Council started consultation on looking for an alternative placement for F. Therefore, I am satisfied the Council was aware of Mr X's concerns.
61. Mr X raised several issues about the provision. The key matter was around F's provision of 1:1 support. F's EHC Plan stated he had a 1:1 carer funded by Continuing Healthcare to support him at school for 32.5 hours per week. The school's response in September 2018 made it clear it did not 'ring-fence' funds for a student and said F's EHC Plan did include named 1:1. Therefore, F did not receive a 1:1 carer in line with his plan which meant his needs were not fully met. The Council should have ensured F received this provision as stated within the EHC Plan and its failure to do so is fault.
62. Had F received the 1:1 support it is likely the issues around walking, wearing his hearing aids, bib changing, sensory swim sessions, and the leg splints may not have occurred. The Council's Child and Family assessment recognised F was being disadvantaged by not wearing his hearing aids. I have seen no supporting evidence of how either the school or the Council addressed this.
63. There is an absolute duty on the Council to provide the provision stated in the EHC Plan. The Council were aware of Mr X's concerns but there is a lack of records from October 2018 onwards which showing how the Council addressed Mr X's concerns. The Council failed to meet the provision laid out in F's ECH Plan between September 2018 and March 2019. That was fault.

Delay in consulting for an alternative placement for F

64. The Council started consultation and searching for an alternative placement for F in September 2018 after agreeing to do so following Mr X's concerns. There are no clear records between October 2018 and March 2019 which show how the Council progressed consultations with alternative placements.
65. The records I have seen show the Council made progress from March 2019 onwards, after Mr X withdrew F from the school. Therefore, I have concluded the Council did not make any significant efforts to consult alternative placements between October 2018 and March 2019 and that was fault. The delay meant F was left a placement which was not meeting his needs for longer than necessary. It is possible F could have started at School A much earlier than September 2019 had the Council not delayed.

Failure to provide F with alternative provision between March and September 2019

66. Mr X withdrew F from the School in March 2019 due to his concerns about provision and safeguarding matters. The Council consulted with alternative placements and found School A could meet F's needs, beginning in September 2019. The Council offered two forms of interim provision for F, one at School B and also the use of facilities and provisions at the school, which he remained on roll at.
67. Mr X declined the offers of the interim placement which meant F was without education between March and September 2019. However, I cannot find the Council at fault for this because it had offered an interim alternative placement which could meet F's needs. Mr X decided both offers would not meet F's needs, however, as explained in paragraph 16, the courts have ruled that it is for the Council to decide what is suitable. Therefore, the Council met its duty to arrange education for F and is not at fault.

The Council’s handling of Mr X’s safeguarding referral

68. Mr X raised several safeguarding matters which involved F at the school. The Ombudsman cannot investigate what happens in a school. In this case I can only look at whether the Council carried out its processes correctly.
69. The Council received Mr X's referral and decided it did not meet the criteria for it to carry out an investigation. It carried out a Child and Family assessment and decided the school and its governors should investigate the matter. The Council also met with the school and said it was satisfied with its actions. There was no fault in the Council's actions or how it considered the safeguarding referral. As the substantive matters occurred in the school, I have not investigated them any further as I do not have any jurisdiction to.

Mr X’s request for a parent carer needs assessment

70. The law says councils must carry out an assessment if a parent carer of a disabled child requests one, or it appears to the Council that the parent carer has needs for support. It must also be satisfied that the disabled child the parent cares for is someone it may provide services for under Section 17 of the Children act 1989.
71. The Council said it does not offer standalone parent care assessments and considers circumstances as part of the child and family assessment. It said it only carries out an assessment if it identifies safeguarding concerns. However, the legislation is clear, and it cannot be interpreted differently. The Council's interpretation of the legislation is flawed. Mr X is a parent carer for a disabled child, and he requested an assessment. Therefore, the Council must carry out an assessment and not doing so was fault. The failure to complete an assessment means Mr X may have lost out on services and assistance he was entitled to.

Complaint handling

72. Mr X first complained to the Council about matters in May 2018. The Council responded at stage 1 of its procedure but refused to escalate it to stage 2 on the basis the outcome would have been no different. Mr X's complaint was complex and about Children's services. The Council should have considered it under the Children's Statutory complaints procedure, which would have meant an independent investigation at Stage 2 and a right to escalate to Stage 3 if still dissatisfied. The Council failed to consider Mr X's complaint under the statutory procedure which denied him the opportunity to escalate and have his complaint considered at all three stages. Mr X's complaint was not handled correctly and that was fault.
73. Mr X complained to the Council again in January 2019, mainly about safeguarding matters occurring in the School and around concerns about the EHC Plan. The Council did not respond to the complaint and there are no records of it following this up with him. That is fault
74. Mr X complained to the Council again in April 2019. The Council did not respond until June 2019 when it told him it would not put his complaint through its procedure. The Council has relied on various correspondence, meetings and EHC Plan reviews. None of them have been investigated at stage 2 of its process which appears in conflict with its own stage 2 policy, which subsequently denied Mr X the opportunity for a review panel to consider the matters at stage 3. Mr X's complaints about lack of provision, delay in consultation, and the concerns about interim provision were all suitable for a stage 2 investigation. The Council failed to properly investigate Mr X's complaint in line with its own procedure at stage 2 and that is fault.

Injustice to F

75. F has severe disabilities and a life limiting condition, therefore every day is important. Past time cannot be made up at a later time. The Council failed to ensure F received the provision set out in his EHC Plan between September 2018 and March 2019. F lost out on opportunities to develop and on educational opportunity. The Council's delay in consulting for an alternative provision increases the injustice to F.

Injustice to Mr X

76. Mr X has experienced distress, uncertainty and significant time and trouble because of how the Council handled his complaints. Had the Council dealt with his complaint under the statutory procedure in the first place, he may not have needed to bring his complaint to the Ombudsman. Mr X has also experienced distress and time and trouble following the Councils refusal to carry out a parent carer needs assessment.
77. In deciding the recommended action below, I have consulted the Ombudsman's Guidance on Remedies. Any agreed payments are outside of any provision allocated for F's EHC Plan.

Agreed action

78. To remedy the injustice caused by the faults the Council agreed within one month of the final decision to:
• pay Mr X a total of £3900 to recognise the loss of development and educational opportunity caused by the failure to deliver the provision set out in F's EHC Plan and the delay in consulting for alternative placements between September 2018 and March 2019. The payment should be used for F's educational benefit.
• pay Mr X £350 to recognise the distress, uncertainty and time and trouble caused to him by the faults identified in the Council's handling of his complaint.
79. The Council agreed within six months of the final decision to:
• review its complaints procedures to ensure complaints about Children's Services are considered appropriately under the correct procedure in future.
• write to Mr X to apologise for not carrying out a parent carer needs assessment after his request. It should now do so In line with the relevant legislation and statutory guidance.
• review its policy on how it considers and carries out parent carer needs assessments to ensure it is in line with the legislation and statutory guidance.
• the Council should provide the Ombudsman with evidence it has carried out the recommendations.
80. These recommendations and timescales are made during the Coronavirus (Covid-19) pandemic. The Council should make every effort to complete them within the agreed timescales, or sooner if possible. However, extensions will be considered given the ongoing crisis which is impacting all public services.

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Final decision

81. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and improve Council services.

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Parts of the complaint that I did not investigate

82. I have not investigated Mr X's complaints about the Council's failure to assist with home adaptations. This was because he appealed to the SEND tribunal about the matters. I have also not investigated the safeguarding incidents which occurred at the School for the reasons explained in paragraphs 68 and 69.

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Investigator's decision on behalf of the Ombudsman