Summary: Mr X complained about the Council’s failure to provide support for his son, D, who has health and learning needs. We find the Council was at fault because it did not manage the case well and did not ensure an assessment for an Education, Health and Care Plan was carried out. To remedy the injustice caused by this fault, the Council has agreed to apologise, make payments to Mr X and review its practices.

The complaint

1. Mr X complains about multiple failings by the Council when providing support for his teenage son, D, who has a several health and learning problems.
2. In particular, he complained the Council:

• failed to arrange an assessment for an Education, Health and Care Plan despite clear evidence this was necessary;
• allowed the case to drift for many months, with little appropriate support in the meantime, poor communication and too many workers involved; and
• did not deal with his complaint properly.

3. As a result, D has been left socially isolated and without the support he requires to address his additional needs.
4. Mr X is represented by his sister, Mrs Y, in making this complaint.

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What I have investigated

5. I have investigated events from September 2019 to February 2021. I understand from speaking to Mrs Y in June 2021 that the situation has not improved since February 2021 and D is not attending school.

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The Ombudsman’s role and powers

6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. 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)
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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 report with Ofsted.

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How I considered this complaint

11. I spoke with Mrs Y and reviewed the information she provided.
12. I made enquiries with the Council and reviewed the relevant law.
13. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered comments received in response before making a final decision.

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What I found

Relevant law and guidance

Special educational needs (SEN)

14. A child with special educational needs may have an Education, Health and Care Plan (ECHP). This sets out the child’s needs and what arrangements should be made to meet them.
15. A request for an assessment can be made by:

• a parent;
• the child; or
• the child’s school

16. Anyone else can bring a child who has (or may have) SEN to the attention of the local authority, particularly where they think an EHC needs assessment may be necessary. This could include health and social care professionals. The local authority must then determine whether an EHCP is necessary.
17. Statutory guidance ‘Special Educational Needs and Disability Code of Practice: 0 to 25 Years’ states “the process of assessing needs and developing EHCP’s “must be carried out in a timely manner”. Steps must be completed as soon as practicable”.

Councils’ duties towards children

18. Local authorities have a duty to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child's needs. (Children Act 1989, section 17).

The Council’s policy – Early Help Assessment

19. The Early Help Assessment (EHA) is a multi-agency “team around the family” approach with an identified lead professional co-ordinating a whole family plan to address multiple issues.
20. The Council’s Early Help Offer brings together a range of services to support children and their families who need some additional help.
21. This should result in a meeting to agree a plan with the family (TAF meeting). This plan should be reviewed at regular periods, normally six to twelve weeks, until the identified improved outcomes have been achieved.

Multi Agency Support Panel

22. Where there are open cases to the Early Help service that are stuck, high cost or escalating, a referral can be made to the Multi Agency Support Panel (MASP). The aim of MASP is, “to provide a multi-agency management perspective between partner agencies for cases currently open to early help services, providing scrutiny and challenge, guidance and access to resources to prevent escalation and progress outcomes”.
23. MASP will seek to ensure that children and young people have access to all relevant services that can support them to manage their needs and improve outcomes for the whole family.

What happened

24. This chronology includes key events in this case and does not cover everything that happened.
25. D is a secondary school pupil. He lives with Mr X who has a learning disability. They are supported by Mr X’s mother (Mrs P) and his sister (Mrs Y).
26. In September 2019, D’s school (the School) contacted the Council because of concerns about D’s well-being due to his poor personal hygiene, attendance, obesity, continence issues and elective mutism. These problems led to D being socially isolated and making poor academic progress.
27. The Council decided D and Mr X should be subject to an Early Help Assessment. The Council set out an initial five-week action plan, that commenced at the end of October 2019. The case was allocated a Family Support Worker (FSW) who was responsible for co-ordinating the case and achieving outcomes.
28. The initial assessment identified a need for Early Help intervention because of:

• concerns around Mr X’s ability to provide guidance, boundaries and stimulation;
• D’s mental health and health issues;
• expected educational milestones not being met; and
• Mr X being in receipt of benefits.

29. The assessment stated successful outcomes would be met when:

• Mr X had a level of understanding on how to age appropriately care for D;
• D felt confident to socialise with his peers;
• Mr X had accessed maths and English courses; and
• D’s mental health had improved and he had access to health services.

30. The first TAF meeting was held in November 2019. This was attended by the School, Mrs P, Mr X and the Council. The following action plan was agreed:

• The School to address social isolation.
• The School to offer mentoring support.
• Health appointments to be arranged.
• The School nurse to support incontinence issues.
• The FSW to offer Mr X guidance around parenting.

31. The aim of this plan was to see D’s confidence grow through his feeling secure and emotionally supported. It was to be reviewed at the next scheduled TAF meeting January 2020. This did not take place because the FSW was absent on sick leave. The case was reallocated to a new FSW in March 2020.
32. In April 2020, Mrs Y raised concerns on behalf of Mr X and D about the situation at home. She informed the Council the home environment and D’s presentation had deteriorated since the start of the first COVID-19 lockdown. This was because D was unable to attend school and Mrs P was prevented from helping with domestic tasks and providing vital additional support to both Mr X and D.
33. In response, the FSW carried out the following actions:

• She made enquiries of the School. She was told an Educational Psychological Assessment had recently been carried out. The School informed her that, “D presents as selectively mute. He will not engage with staff or other pupils in conversation. There is a small group of children to whom he will communicate. D presents as having a general learning difficulty and is behind in all areas”.
• She liaised with health colleagues to arrange an assessment of D’s mental health by the Children and Adolescent Mental Health Service (CAMHS).
• She met D.
• She coordinated health/continence support for D.
• She carried out research on support available for children with selective mutism.

34. In May 2020, CAMHS decided D did not meet the criteria for its service.
35. A manager reviewed the case and expressed concern that a TAF had not been held since November 2019. Her supervision notes referred to the case being allowed to drift, partly caused by the change of FSW.
36. The TAF meeting was promptly arranged and took place in early June 2020. Actions identified at the meeting included the following:

• Continence support.
• Support to Mr X to help him provide a better home environment for D and more routine and discipline when required.
• A buddy system at school.

37. The records show the FSW was working hard during this period, liaising with other agencies and the family.
38. At the next TAF meeting in July 2020, it was agreed that D should have an EHCP. In response to this the School explained that it needed to demonstrate that it had put in place the recommendations from the Educational Psychologist’s report and assess if there had been any positive impact prior to any statutory assessment. The School said it would review progress in September.
39. The FSW confirmed to the TAF meeting that support was being offered to Mr X from a specialist support agency and adult social care were going to carry out an assessment of his own care needs.
40. Due to the previous delay, the case was being closely monitored by the FSW’s manager. In an email from the manager to a colleague, she explained, “this young person’s case has drifted significantly, and I am now managing it and want the right support and ensure his needs are being met”.
41. The manager also spoke to family GP. The GP said the case could not be allowed to drift anymore. He explained there was a previous Educational Psychology report dating back to 2018 and concerns had been raised about D when he was at primary school where D should have “had a statement”. In response, the manager said she would liaise with the School about the EHCP and request this start with immediate effect.
42. In August 2020, a new FSW was allocated to the case due to the absence of the previous worker. She made further enquiries of the School at the start of the autumn term. The School said further work had to take place in order to evidence the need for an EHCP and a number of strategies had been identified to support D, including having a trusted adult for D, a specialist support plan (THRIVE) and working on his self esteem
43. The FSW asked to observe D in a classroom environment but this was not possible because of COVID-19 restrictions on visitors.
44. The FSW make further enquiries of the school in October and was told some improvements were being seen. D’s attendance was good and his work was showing some improvement. The THRIVE program was not taking place because the relevant member of staff was self-isolating.
45. Despite this, both Mrs P and Mrs X were getting frustrated by the lack of meaningful improvement, including the lack of communication from the School.
46. When they raised these concerns with the FSW, she explained it was her role to “empower the family to support themselves and explained that Mrs P would have to communicate with the school”.
47. In November 2020, the manager referred the case to MASP because it was described as a “stuck case”. Several professionals and the family attended and reviewed the current situation. The School did not attend. It was decided the case did not meet the threshold for children’s social care involvement. MASP agreed the EHCP assessment was a priority, and that Mr X should be supported to request the statutory assessment.
48. The Council arranged for D and Mr X to be seen by an Educational Psychologist to work with them on how to address his selective mutism and the home environment.
49. In December 2020, the School advised the FSW that because of resource issues the EHCP could not be progressed until February 2021. She was also alerted to a decline in his attendance and presentation in the classroom.
50. The FSW continued working with Mr X to make the changes necessary to improve the situation. Her case notes record the difficulties she continued to face in try to get him to put measures in place at home to achieve this. She acknowledged that “Mr X’s capacity to understand is limited”. She also acknowledged he “felt overwhelmed with the professionals and the support implemented”.
51. In January 2021 the Educational Psychologist started working with the family. The School advised Mrs P that the EHCP process was to be reviewed in February. The FSW made contact with the following services:

• Youth Services to discuss possible support for D.
• Housing Department about repairs to the family home.
• SEN advocacy service.

52. In February 2021, the School reported problems with D’s presentation at school and expressed concerns about Mr X’s ability to manage the problem. A TAF meeting took place with the family to review the work that had taken place and agree actions going forwards. These included continuing to work on strategies identified by the Educational Psychologist and keeping the family informed.

The complaint

53. In July 2020, Mrs Y complained to the Council about the following matters:

• Lack of communication from the School.
• Failure to address D’s mutism.
• Failure to address D’s obesity.
• Failure to address D’s continued social isolation.
• Failure to address D’s incontinence.
• Failure to provide copies of experts reports and assessments.
• Failure to offer support to Mr X, appropriate to his learning disability.
• Lack of understanding about Mr X’s communication difficulties, including use of Microsoft Teams.

54. She did not receive a reply within the Council’s complaint handling timeframe.
55. The Council apologised for the delay due to an error when the complaint was first received.
56. A manager met with the family in August 2020 to discuss the complaint and the case generally. The Council said it explained the remit of the Early Help service and clarified roles and responsibilities.
57. The Council replied to Mrs Y’s complaint in September 2020, making the following points:

• The Council was unable to share reports from other agencies. Mrs Y was advised to contact them directly.
• The new FSW worker would meet with Mr X every two weeks going forwards.
• The Council confirmed it had made a request to the School that it should consider an EHCP as a matter of urgency. The Council explained, “the decision for the EHCP process to be initiated sits with the School and Education Department, not the Early Help team”.
• In the longer term, further support was needed to manage D’s weight, incontinence and social isolation but it was acknowledged that the Early Help service needed to await the outcome of the EHCP request prior to progressing these tasks.

58. Dissatisfied with this response, Mrs Y referred the matter to the Ombudsman. She explained D’s situation had not improved since the Council’s involvement. She felt he has been let down by the system and none of his problems have been resolved including his lack of speech, his social isolation, weight, continence and hygiene issues.
59. In response to the Ombudsman’s enquiries the Council made the following points:

• The Council accepted there had been fault with its original complaint handling in July 2020. To rectify this, the Council apologised and the Early Help service manager had met with the family to discuss the issues.
• Many interventions had taken place to assist the family in improving the outcomes for D.
• The case did not meet the threshold for a Child in Need Plan.
• Regular review meetings had been held since June 2020.
• The School were unable to action the ECHP until February 2021 but Early Help had advised the family they could request an assessment directly. An advocacy service had been arranged to support with this. As of March 2021, the Council was awaiting an update about this.
• Poor engagement from the family has delayed some progress.

60. In response to a draft version of this decision, the Council has confirmed that the EHCP process is now underway.

Analysis

61. It is evident from reading the Council’s case records, and from speaking to Mrs Y, that D is a young man who requires extra support. While Mr X is clearly a committed and loving parent, his own additional care needs mean that he has been unable to provide the structure and routine that all children need to thrive and be healthy.
62. While I understand Mrs Y’s frustration that D’s circumstances have not noticeably improved since the Council became involved in September 2019, this, in itself, is not necessarily evidence of fault by the Council.
63. To decide if there has been fault in this case, I will consider the three areas of concern in turn:

Failure to arrange an assessment for an Education, Health and Care Plan despite clear evidence this was necessary

64. The case records show there was clear consensus from everyone involved, including the GP, the Educational Psychologist, the family, the Early Help team, and later MASP, that D would benefit from the structure of support that an EHCP would bring. This School was already making preparations for an assessment to be made prior to the Early Help service becoming involved in the autumn of 2019.
65. As explained at paragraphs 15 and 16 above, the Council’s SEN department would first have to carry out a statutory assessment to determine if D is eligible for an EHCP.
66. The School repeatedly said it was gathering evidence to support the request for an assessment. Unfortunately, progress was slow, although I accept this was partly due to the impact of COVID-19. The School said it could not progress with the request until certain assessments were completed. But this did not happen due to various internal and external issues including the member of staff self-isolating and resource constraints. Despite the School saying this would be done in February 2021, at the time of writing this decision, the EHCP assessment has not been actioned. The Council has not provided an explanation for this.
67. It is disappointing that the School did not action the EHCP process but for the reasons explained in paragraph 8 above I am unable to investigate or criticise the actions of the School.
68. However, I can decide whether there was fault by the Council for not intervening sooner, and whether what it did to accelerate the process was enough.
69. The Council seems to have recognised the matter was taking too long at the MASP meeting in November 2020 when it agreed to support Mr X in making the application himself and by arranging an advocate. Arguably, the Council could have acted sooner, but I accept it was being guided by the School, so I do not find fault up to this point. However, once the MASP accepted action had to be taken, the Council should have made sure this happened immediately.
70. The Council’s response to the Ombudsman states the Early Help service was unable to make this application on behalf of the family. I do not agree. The law states that the Council’s duty to determine whether an EHCP is necessary does not have to rely on a request for an assessment from either the school, parent or child. The duty is triggered when a child has been identified as having SEN (Children and Families Act 2014 section 24(1)(a) and section 36 (1)(3). This was clearly evidenced by the discussions at the TAF and MASP meetings.
71. Council departments should not operate insolation and the Early Help service should have alerted the SEN department that an assessment was required when it became clear that the School was either unable or unwilling to make progress in November 2020 at the latest.
72. Both Mrs P and Mrs Y had repeatedly explained to the Council that Mr X struggled to cope with the various interventions. I acknowledge the referral to an SEN advocacy service was intended to help Mr X but there is no evidence that it made any difference in terms of an outcome and added to the family’s increasing frustration. The Council failed to follow this us and ascertain why the EHCP remained at its pre-assessment stage, despite the advocacy service becoming involved.
73. As a result, D has been unable to access a range of potentially useful services (such as the support of a selective mutism charity that only works with children who have an EHCP) for too long. The Council’s complaint response to Mrs Y acknowledged that this vial support was dependent on an EHCP being in place.
74. This delay and reliance on other agencies to progress the EHCP is fault that has caused a clear injustice to D. While I cannot say whether the assessment would have led to an EHCP, the avoidable delay has meant D has been denied the opportunity to have his circumstances properly considered and this uncertainty should be remedied.

Allowing the case to drift for many months, with little appropriate support in the meantime, poor communication and too many workers involved

75. Mrs Y says nothing has been done to support the family. I cannot agree entirely with this view. The records show the Council made arrangements for a number of specialist services to offer help and guidance including:

• Sessions with an educational psychologist.
• Facilitating and adult care needs assessment for Mr X.
• Arranging health services for D including continence support and dietary advice.
• Arranging a specialist support worker to help Mr X.

76. The evidence I have seen demonstrates that the Council has sought to engage the appropriate agencies in many areas. I appreciate these may not have resulted in the outcome expected by Mrs Y, but the Council had acted properly by making the arrangements. For example, while Mrs Y rejects the decision by CAMHS that D does not have a mental health problem, the Council is not responsible for this. Similarly, the records show the FSWs have spent a considerable amount of time trying to support Mr X and D to improve their situation at home. The FSW’s have devised numerous strategies relating to discipline, diet, cleanliness, the condition of the home and other matters. These have been discussed with and agreed by Mr X. There have clearly been difficulties experienced by Mr X in engaging with this process and this has affected the outcome in many areas. I say this as a statement of fact, rather than any criticism of him. However, the Council has spent a considerable amount of time and effort supporting and encouraging him that should be acknowledged.
77. Despite some good practice, the Council has already acknowledged the case, for many reasons, including staff turnover, was allowed to drift. This was first identified in May 2020 during supervision between the manager and the second FSW to be allocated to the case.
78. It was further acknowledged when the case was referred to MASP when it was described as “a stuck case”.
79. The Council’s policy states a TAF meeting should be held regularly (6-12 weeks) but the initial TAF meeting set this target as every four weeks. In this case there was a delay of six months between the fist and second TAF meeting. While I note, the case was brough back on track for several months due to closer management supervision, since September 2020, there has been only one further TAF meeting in February 2021 and no minutes are available from this. The Council has not provided an explanation for why meetings were not held in the interim period.
80. Failure to hold these regular meetings allowed the case to lose its focus and delayed it being progressed as it should have. This also meant the Council did not assess the case against the outcomes that had been specific at the beginning.
81. The original outcomes were last reviewed in September 2020, and only one of the outcomes (set out at paragraph 31 above) had been met. Because of this, it is not possible for me to make an objective assessment about whether the Council has done what it should have done.
82. D had four FSW’s over a period of a year, which meant it was very difficult for him to build a trusting relationship with some of them or gain any sort of continuity. I accept that a certain degree of worker change is to be expected due to turnover of staff, sickness etc and in many cases is unavoidable. I have considered the reasons given for the staff changes and I accept these were matters out of the Council’s control and for this reason I do not find fault here.
83. I can see that much of the family’s dissatisfaction with the Council could be due to a misunderstanding about the remit of the Early Help service. On several occasions, the family were resistant to the suggestion by the FSW that they should be responsible for contacting other agencies. The case notes included several incidents when Mrs P said she expected the Council to deal with certain matters including communicating with the School. This could have been avoided has the Council been clear from the outset about respective roles and responsibilities.
84. There are several instances where the family asked the Council for copies of reports and assessments. Most (for example, the Educational Psychologist and CAMHS reports) derived from other agencies and so it was not the Council’s responsibility to send these to the family. The FSW often asked these agencies to send copies of the requested documents. The fact they were not sent is not the fault of the Council.
85. As time went on there was increasing frustration expressed by the family about the number of meetings that, in their opinion, did not seem to achieve anything, but also the expectation the family had the required resources/abilities to be able to dial in to these meetings remotely. Due to Covid-!9, most of the meetings were carried out over Zoom. Mrs Y explained this was beyond the capacity of Mr X who was only able to operate a basic Nokia phone. Mrs P had similar issues with these meetings. But the records show that both did attend on a regular basis and able to participate.
86. Taking into consideration the timeline of this case, the periods of time when the case was allowed to drift and the failure to assess the progress of the case against its own specified outcomes, I find the Council to be at fault. This has caused considerable frustration to the family and this injustice should be remedied.

Poor complaint handling

87. The Council has accepted there was fault by its failure to deal with Mrs X’s complaint when it was first received. The Council has already apologised and a manager took steps to arrange a meeting with the family to discuss the complaint personally. This is an appropriate remedy, and the Ombudsman can add nothing further here.

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Agreed action

88. To remedy the two areas of fault identified in this decision statement (inadequate case progression and failure to ensure an ECHP assessment took place), the Council has agreed to take the following action:
1. Apologise to Mr X.
2. Make a payment of £500 to Mr X to acknowledge the distress caused by the fault in the way this case was managed.
3. Make a payment of £1000 to Mr X, for the benefit of D, to acknowledge the failure to ensure an EHCP assessment took place promptly.
4. Reflect on the issues raised in this decision statement and identify any areas of service improvement. The Council should prepare a short report setting out what the Council intends to do to ensure similar problems not reoccur. This report should be sent to the Ombudsman.

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Final decision

89. I have found the Council to be at fault and the Council has agreed to my recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman