Summary: Mrs B complained the Council delayed arranging a residential placement for her son. Mrs B says the delay led to her son being at risk of harm and caused their family distress. We found fault with the Council causing injustice. The Council delayed assessing C for a residential placement and failed to meet the statutory timescales for reviewing his Education, Health and Care Plan. This caused the family significant injustice. The Council will make a financial remedy to the family for the distress caused, and issue C’s Education Health and Care Plan.

The complaint

1. Mrs B complained the Council delayed arranging a residential placement for her son. She says he missed specialist education provision.
2. Mrs B says the delay led to her son being at risk of harm and caused their family distress.

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The Ombudsman’s role and powers

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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

6. I considered:
• Mrs B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
7. Mr and Mrs B and the Council had the opportunity to comment to a draft decision. I considered their comments before making a final decision.

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What I found

Legislation and guidance: Education, Health and Care Plan

8. A child with special educational needs (SEN) may have an Education, Health and Care Plan (EHCP). The plan sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections which include.
• Section I: The name and type of the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution (or, where the name of a school or other institution is not specified in the EHCP, the type of school or other institution to be attended by the child or young person).
9. EHCPs should reviewed by the council at a minimum every 12 months.
10. Within four weeks of the review meeting, the council must decide whether it proposes to keep the EHCP, amend it, or cease to maintain it. It must notify the child’s parent or the young person and the school.
11. Where the council proposes to amend an EHCP, it must issue an amended EHCP within eight weeks of the original amendment notice.
12. Where a council amends an EHCP, the following review must be held within 12 months of the date of the original EHCP or previous review (not 12 months from the date the amended EHCP is issued).
13. When the council sends the final amended EHCP, it must notify the child’s parent or the young person of their right to appeal.
14. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. The Coronavirus Act 2020 allowed the Secretary of State to temporarily modify existing legal requirements and issue guidance about provision of education for children with special educational needs and disabilities. This was a temporary change applying from 1 May to 31 July 2020. At the end of this period, councils’ usual duties returned.

Legislation and guidance: Safeguarding

15. Councils with children’s services duties must act in response to information that a child might be suffering or at risk of suffering significant harm. This duty arises under section 47 of the Children Act 1989.
16. Physical violence is one form of harm. If the physical violence is likely to be repeated, the fear of the repeat is also harm.
17. Under the Children Act 1989, local authorities are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. Where a referral is accepted under section 17 the council should lead a multi-agency assessment and compete it within 45 working days. Where the council’s children’s social care decides to provide services, it should develop a multi-agency child in need plan which sets out which organisations and agencies will provide which services to the child and family. The plan must be reviewed within three months of the start of the child in need plan and further reviews should take place at least every six months thereafter. (Working Together to Safeguard Children 2018)
18. Councils with children’s services duties must provide accommodation for children where it appears the person who has been caring for the child is prevented (for whatever reason) from providing them with suitable accommodation or care (Children Act 1989, s.20)

What happened

19. This chronology includes key events in this case and does not cover everything that happened.
20. Mrs B has a child, C. C has a diagnosis of Autism Spectrum Disorder. C can present with challenging and aggressive behaviour. C has two younger siblings.
21. In 2017, C’s final ECHP named a specialist education provider in section I, School 1. C attended as a day student.
22. Police raised safeguarding concerns with the Council in October 2018, March, and April 2019 after responding to incidents at the family home. C was threatening and aggressive towards their parents.
23. The Council agreed a safety plan with Mr and Mrs B. Sharp items and harmful substances were kept in locked cupboards. C’s siblings had locks on their doors and were told to go to a neighbour’s house in an emergency where they could contact their grandparents. Mr and Mrs B asked the Council about a residential placement for C.
24. In May 2019, social care told Mrs B it had spoken to School 1 who said the earliest C could attend as a residential student would be September 2019. The social care department contacted the SEN team in July 2019. It explained C wanted to become a residential student at School 1 and it supported the request. It asked the SEN team how to arrange this. There is no evidence the SEN team responded.
25. In September 2019, the police reported to the Council that C had caused criminal damage to the family home.
26. School 1 held an EHCP review for C in December 2019. C’s views were shared. C said they wanted to become a residential student at School 1 because of difficulties at home. Mr and Mrs B supported their request.
27. Social care said a weekly residential placement would meet C’s need:
• for consistency and structure;
• to develop social skills and positive friendships;
• to safely access the internet;
• to access social activities; and
• to develop independent living skills.
28. School 1 sent C’s EHCP annual review report to the Council in January 2020. The report said C wanted to become a residential student and this was supported by their parents, social care and School 1. The report stated that a residential placement would address C’s social care and special educational needs. The report recommended the Council amend C’s EHCP.
29. In March 2020, the police told the Council C was at risk from being groomed online. It also raised concerns about C’s behaviour towards their family. The police told the Council C wanted to move into a residential placement and commented that this would take some pressure off the rest of the family.
30. The Child and Adolescent Mental Health Service (CAMHS) also raised concerns with the Council. It told the Council C’s behaviour was a risk to themselves and others.
31. The Council held a strategy meeting and decided to start a child protection investigation for C. It was noted that one of their siblings had been physically harmed when they got between C and their parents during an altercation.
32. At the child protection conference in May 2020 concerns were raised about C’s vulnerability to child sexual exploitation and their aggressive and violent behaviour towards their parents. It was noted that C’s parents wanted them to attend School 1 as a residential student to improve their social skills and reduce their vulnerability. Professionals said residential social care and education provision needed to be explored by 17 July 2020.
33. School 1 contacted the Council in July 2020 and asked for an update. It advised the family were at serious risk and needed intervention fast. The social care department said it needed agreement from the SEN team for a residential assessment.
34. At a core group meeting in June 2020, C’s parents said they were worried about the impact of C’s behaviour on their two younger children. They said they wanted the Council to consider a residential placement for C. Social care said it had made enquiries of the SEN team. School 1 were clear they would accept C as a residential student.
35. The Council held a child protection conference in July 2020. The minutes record that School 1 could meet C’s needs for residential provision. It noted there were delays with the SEN team. The chair of the meeting recommended Mrs B made a complaint about these delays to speed up matters.
36. Mrs B complained to the Council. She said the Council had not provided a specialist residential education placement for C. Mrs B explained this put C at risk of having to live in care. She explained the Council’s delay was impacting on C and the family’s mental health. She asked the Council to confirm a residential educational placement would be available for C in September 2020.
37. At a core group meeting in August 2020, Mrs B asked the Council again to arrange for C to attend School 1 as a residential student. Social care advised it would need to submit the case to its resource panel for approval.
38. The Council sent Mrs B notice to amend C’s EHCP in August 2020.
39. The Council discussed Mrs B’s complaint internally. The Council decided it could not agree to C having a residential placement without an up-to-date social care assessment and approval for the additional costs.
40. The Council responded to Mrs B in August 2020. It apologised that it did not respond to C’s EHCP review. It said it seemed there had been a gap in communication about the request and how it was managed. It advised C’s social worker would complete an assessment to decide whether C’s social care needs would be best met by a residential placement. It said it would undertake this assessment in around three weeks.
41. The Council began C’s social care assessment in September 2020.
42. The Council’s minutes from the core group meeting in September 2020 recorded that Mrs B expressed frustration with the Council’s delay assessing C. The Council confirmed it would complete a social care assessment for C.
43. Mrs B complained to the Council that she was no further forward. She asked for a final complaint response. In September 2020, it told Mrs B the assessment of C would take place around three weeks from the date of its last letter.
44. In October 2020, School 1 contacted the Council again. It highlighted there had been no progress since it last contacted the Council in July 2020. It said it felt the Council were letting the family down. It commented that it could not understand why the Council had not agreed a residential assessment yet.
45. At the core group meeting in October 2020, the Council confirmed it would complete an assessment for C. This assessment was to include consideration of respite for Mr and Mrs B, which could include a residential placement at School 1.
46. The police became involved with C and removed all their electronic devices because of concerns about what they were accessing on the internet. Mr and Mrs B told the Council they could not keep C safe at home.
47. At the end of October, the Council confirmed at a core group meeting that it had completed a social care assessment for C. It said it would make an application to panel for C to have a residential placement. School 1 expressed frustration that it had been asking the Council to consider residential provision for C for two years and it was not long before C would have to leave the school.
48. In November 2020, the Council held a child protection conference. Attendees felt a residential placement would be in C’s best interest and keep them safe. Social care said it needed to finalise its assessment and take it to panel for approval.
49. The Council’s resource panel agreed C’s residential placement and C started to attend School 1 as a term-time weekday boarder from the end of November 2020.
50. The Council held an EHCP review in November 2020. Attendees agreed the Council needed to amend C’s EHCP.
51. In December 2020, the Council closed C’s child protection investigation. C became a child in care when they started their residential placement at School 1.
52. The Council sent Mr and Mrs B a notice to amend C’s EHCP in January 2021. As of April 2021, the Council had still not issued an amended draft or final EHCP.
53. In response to enquiries the Council apologised for the delay assessing C’s need to become a residential student. It advised social care provided C with £8,800 of direct payments a year. It advised these payments were for Mr and Mrs B to have a break from their caring role; for an enabling support worker to work with C to build up their resilience to situations they find challenging; to boost C's sense of self-confidence and independence, and for C's two younger siblings to get some quality time with their parents.

Analysis

54. The Council was responsible for safeguarding C and their family, and for ensuring C’s social and special educational needs were met. Neither social care nor the SEN team took responsibility for assessing C for residential provision or for providing it. As a result, the family’s needs were not met.
55. This complaint involved events that occurred during the COVID-19 pandemic. However, if there had been no delay by the Council, C would have accessed residential provision in September 2019, before the pandemic.

Safeguarding

56. From April 2019 onwards, Mr and Mrs B repeatedly asked for a residential placement for C to keep them and their siblings safe. School 1, the police and social care supported their request. Despite this, social care did not assess whether C’s needs would be met by a residential placement until November 2020. There was 17 months between Mr and Mrs B asking for a residential placement for C and the Council completing one. This was fault.
57. The Council should have kept under review whether C’s siblings were at risk of harm and if they needed to be safeguarded. The Council did not, and this was fault.

EHCP

58. In July 2019, social care asked the SEN team how to arrange residential provision for C at School 1. Given the requested change in provision, the Council should have considered holding an emergency EHCP review. It did not and this was fault.
59. School 1 held C’s annual EHCP review in December 2019. The result of the review was the Council should amend C’s EHCP and change his provision to a residential placement at School 1. This recommendation was supported by the Council’s social care department. The Council should have told Mr and Mrs B whether it intended to amend C’s EHCP within four weeks of the review meeting. The Council sent a notice to amend in August 2020, a delay of seven months. This was fault.
60. The Council should have issued a final amended EHCP for C within 12 weeks of the EHCP review. The Council is yet to issue the final amended EHCP, and it is now more than 12 months overdue. This delay is fault.

Injustice

61. Between May 2019 and December 2020, the need for C to attend residential provision did not lessen. This is evidenced by reports from the police, social care, Mr and Mrs B and School 1. They all stated throughout this period that residential provision would meet C’s needs and address safeguarding concerns. Therefore, on the balance of probabilities, if the Council had assessed C for residential provision by July 2019, it would have arranged for C to attend School 1 as a residential student from September 2019.
62. Between September 2019 and when C started as a residential student at School 1 in November 2020, C, their siblings, and parents were at risk of, in fear of and subject to harm. One of C’s siblings was injured during an altercation between C and their parents, C became at risk of child sexual exploitation and Mr and Mrs B and C’s siblings lived in fear. The Council’s child protection investigation identified residential provision as an intervention that could safeguard C and his family. As a result of the Council’s delay, C’s and his family were at risk of and subject to harm for longer than necessary. The Council’s delay caused the family significant distress and I have recommended it make a symbolic payment to acknowledge this.
63. In December 2019, C’s EHCP review recommended the Council amend his EHCP. It stated that a residential placement would address C’s social care and special educational needs. The Council should have finalised his EHCP by the end of April 2020. As the Council has failed to issue an amended final EHCP for C, I cannot determine what, if any provision, C missed. I have recommended the Council consider offering Mr and Mrs B a remedy for any lost provision once it has issued C’s final amended EHCP. If Mr and Mrs B are unhappy with the Council’s offer, they can return to the Ombudsman.
64. The delay in the Council issuing a final amended EHCP prevented Mr and Mrs B from accessing their appeal rights to the SEND tribunal.

Agreed action

65. Within one month of the final decision, the Council will:
• Pay each family member £500 for the distress experienced during the period of delay in the Council assessing C for residential provision. This will be a total of £2500.
• Pay Mr and Mrs B £500 for delaying their right of appeal to the SEND tribunal.
• Issue C’s final amended EHCP.
66. Within two months the Council will:
• Once C’s final EHCP has been issued, the Council should consider whether C lost provision because of its delay. If C did, the Council should remedy this injustice.
• Develop a pathway for residential provision for children and young people. This should identify which service is responsible for assessing and arranging residential provision. It should also outline how social care and the SEN team will work together to ensure the child and family’s needs are met without delay.
• Use an anonymised account of this case as an example to train staff in the social care and SEN teams on the new children and young people’s residential provision pathway.
67. The Council should provide the Ombudsman with evidence these actions have been completed.

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Final decision

68. I have completed my investigation and uphold Ms B’s complaint. Mrs B and her family were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman