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Milton Keynes Council (20 009 914)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 28 Jul 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council has failed to provide help and support to manage his son’s behaviour. The Council’s failure to implement the agreed care package or to explore wider support for Mr X’s family amounts to fault. This fault has caused an injustice.

The complaint

  1. The complainant, whom I shall refer to as Mr X complains the Council has failed to provide help and support to manage his son’s behaviour. Mr X requested additional support for his son in early 2019, following a deterioration in his son’s behaviour and outbursts of aggression towards himself. The head teacher at his son’s school also raised concerns in October 2019. Mr X complains the Council has yet to provide any additional help.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
  3. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Mr X;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with Mr X;
    • Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Key facts

  1. Mr X’s son, Y has special educational needs and has an Education Health and Care (EHC) plan. Mr X states Y’s anxiety and challenging, self-harming behaviour increased in late 2018. In January 2019 Mr X asked for additional help at the annual review of his son’s EHC plan.
  2. The Council issued a proposed amended EHC Plan in August 2019 which Mr did not agree with. The Council issued a final ECH Plan in early February 2020. Mr X remained unhappy with the plan and appealed to SEND tribunal. The Council states it continued to work with Mr and Mrs X to update the EHC plan and resolve their concerns.
  3. Y also has a social worker in the Council’s Children with Disabilities team. The Council holds Child in Need review meetings for Y every six months. The records of a Child in Need review in January 2019 note the Council provides a care package of 10 hours of care every four weeks which is currently suspended.
  4. The Child in Need review in July 2019 also refers to the care package of 10 hours, and states it is not currently being used because of Y’s behaviour. The records state the social worker will explore alternative agencies that could provide a care package for Y once his behaviours reduce enough that it will be safe for Y and the carers.
  5. Mr X attended a meeting with the school and professional involved with Y to discuss his self-injurious behaviour in October 2019. The minutes of this meeting record that Y’s head teacher felt Y was a safe-guarding risk at school as they were unable to keep him safe from self-harming. The head teacher had taken Y’s case to the high complex needs multi agency forum. The outcome of this was that Mr and Mrs X should arrange a GP health check for Y and then there would be a follow up meeting.
  6. At the next Child in Need review in February 2020 Mr X again raised concerns about Y’s behaviour and his disappointment the Council had not provided any additional help. The records state a care package is to be set up to give Mr and Mrs X a break. The social worker’s recommendation was for 10 hours every four weeks with 2:1 staffing.
  7. Mr X also chased an update regarding any action following the referral to the high complex needs forum. The head teacher confirmed in February 2020 that no further measures had been put in place. They requested a review meeting to see if further support was available. This review took place on 1 March 2020.
  8. The high complex needs multi agency forum suggested that social care explore whether there could be any wider support for the family, particularly when Mr X was working away. It also suggested exploring a Positive Behaviour Support (PBS) assessment for Y at home and school.
  9. Although the finance panel agreed funding for a care package of 2.5 hours a week this was not set up. The Child in Need review in July 2020 records that a teacher from Y’s school had agreed to take Y out over the summer, but needed to identify another person to support Y. Once a second care worker was identified, the care package would be set up through direct payments.
  10. Mr X made a formal complaint in July 2020 about the Council’s delay in providing additional help for Y. The Council acknowledged it had agreed to make a PBS referral for Y but that this had been delayed due to COVID-19. It confirmed it had now made a referral to the British Institute of Learning Disability (BILD) who would work with Mr and Mrs X, the school and other professionals to develop a PBS plan for Y.
  11. The Council also confirmed that due to Y’s recent difficulties it would progress a continuing care referral. It would also liaise with the school regarding the wording of Y’s EHC plan. The Council issued a proposed amended EHC plan in August 2020.
  12. As Mr X did not consider this resolved his complaint he asked for a review at stage two of the Council’s complaint process. Although Mr X was grateful for the proposed assistance from BILD he was concerned they had not received any detail of the assistance or confirmation of dates. The Council declined to consider Mr X’s complaint further at this stage as he had appealed to the SEND Tribunal.
  13. In December 2020 the Council completed a Child and Family Assessment. This also notes a care package had been agreed, but Mr and Mrs X had been unable to find carers from Y’s school. If carers could not be found from Y’s school, the Council would seek a care package. The assessment also notes the Council had commissioned BILD to assess how to support the school and Mr and Mrs X with Y’s behaviour and to develop a PBS plan.
  14. The package of care was still not in place by the next Child in Need review in January 2021. The records of this review state since March 2020 and the lockdown it had not been possible to set up a care package to get Y out of the home. Y was out of his normal routine and was having many meltdowns. The social worker suggested trying a care package to see if it reduced Y’s behaviour. The records state Mr and Mrs X had been unable to find a personal assistant so the Council will need to approach a care agency.
  15. The SEND tribunal considered Mr X’s appeal in February 2021 and the Council issued a final EHC plan in March 2021.
  16. Mr X is unhappy with the Council’s delay in providing help and support. Mr X was hopeful the PBS plan developed with BILD would be beneficial but is unhappy with the way this training will now take place and with how the plan will be drawn up. Mr X complains that the only support the social worker has provided was to get funding for respite care, but this has not happened due to COVID-19 restrictions and a delay in finding a care agency.
  17. In response to my enquiries the Council states a discussion at the high complex needs panel enabled professionals to discuss how best to support Y and his family. It states that although PBS work was agreed as additional support, Y and his family continued to be supported through school, the Council’s Children with Disabilities Social Work Team and CAMHS. The Council notes the safeguarding concerns were focused around how to keep Y safe during episodes of self-injurious behaviour.
  18. The Council states that although there was a delay in putting the PBS support in place, the existing support continued. Having commissioned the PBS work through BILD, this was unfortunately delayed further through COVID-19. Once the initial assessment days were undertaken in September 2020 there was then a disagreement with Y’s family as to how this should be delivered. This resulted in a SEND tribunal hearing. The Council states that throughout this period of delay Y has still accessed a PBS approach as this was embedded through the school. The purpose of commissioning BILD was to provide additional intervention around concerns raised. The Council states there has been an improvement in Y’s presentation at school over the last year and less concern from school.
  19. Since contacting the Ombudsman, Mr X states Y has been allocated a new social worker. The new social worker has recently contacted Mr X regarding the care package and is now looking for an agency to provide this support.
  20. In response to the draft decision Mr X states he has not received reports of any Child in Need reviews since the report of February 2020 which he notes there was a significant delay in completing. He also questions the Council’s view that there has been an improvement in Y’s presentation at school. Mr X states Y is still struggling very badly and leaves school 30 minutes before other children at the school. He states Y’s medication has increased and that Y is still harming himself at school and at home on a daily basis.

Analysis

  1. The PBS assessment and plan commissioned via BILD are included in Y’s EHC plan. The SEND Tribunal has considered Mr X’s concerns about the way the PBS plan is produced and confirmed the time allowed and arrangements for this to be done remotely are appropriate. Although Mr X remains unhappy, we cannot consider the arrangements for the PBS plan. Nor are we able to consider Mr X’s concerns that Y’s school provided incorrect information to the Tribunal about staff having already completed PBS training.
  2. The Ombudsman has no jurisdiction where a parent has appealed to the SEND Tribunal.
  3. We are however able to investigate Mr X’s concerns about a lack of support outside the EHC plan. It is clear from the Child in Need reviews that the Council has agreed to provide a care package of 10 hours every fours weeks (2.5 hours a week) for a number of years. The need for a care package is also confirmed in the Child and Family assessment. It is therefore disappointing that this has not been put in to place to ensure Mr and Mrs X receive respite, particularly as Y’s challenging behaviour escalated.
  4. Having identified a need for respite care I would expect the Council to have been more proactive in ensuring this was available. The Council’s records repeatedly state the Council will monitor this through regular contact with Mr and Mrs X and will identify agencies to provide respite care. However, I have not received any evidence of regular contact or that the Council tried to find carers, or to implement the care package.
  5. I recognise there may have been periods during the COVID-19 lockdowns where carers may have been unable to take Y out. But this does not explain why the Council had not tried to source a care agency prior to the pandemic, or after the lockdown, when restrictions were relaxed.
  6. In March 2020 the high complex needs multi-agency forum also recommended the Council explore wider support for the family. The Council has not confirmed what, if any, action it took in relation to this recommendation. There is no evidence the Council has attempted to identify or provide any wider support for the family.
  7. I consider the Council’s failure to provide respite and to explore wider support for Mr X’s family amounts to fault.
  8. Mr X states that coping with Y’s violent outburst has made his family’s home life particularly difficult. Mr and Mrs X have not received any respite or support in managing Y’s behaviour despite asking for this over two years ago. This has affected their wellbeing and at times Mr X’s ability to work. Mr X states that although they may not have wanted respite during the initial lockdown, prior to that and when restrictions were eased, they wanted and would have accepted support.

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Agreed action

  1. The Council has agreed to:
    • apologise to Mr X and Y for the failure to implement the agreed care package or to explore wider support for the family;
    • pay Mr X £750 in recognition the distress the family has experienced over a sustained period due to the Council’s failure to provide the agreed care package or to explore wider support for the family;
    • identify a suitable agency to provide the agreed care package. The Council should then implement this support without further delay.
    • identify any wider support available to the family. If Mr X agrees to any support identified, the Council should implement this without delay.
  2. The Council should take this action within one month of the final decision on this complaint.

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Final decision

  1. The Council’s failure to implement the agreed care package or to explore wider support for Mr X’s family amounts to fault. This fault has caused an injustice.

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Investigator's decision on behalf of the Ombudsman

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