Summary: Ms Y complained about the way the Council dealt with her child, Z’s Education Health and Care plan, special educational needs provision, social care assessments and social care provision. We have found the following faults by the Council: failure to respond to Ms Y’s concerns about section A of Z’s Education Health and Care plan; failure to put Z’s social care support in place; and a failure to deliver all Z’s special educational needs provision in the year 2020/2021. We have also found these faults caused Ms Y and Z injustice. We have not found fault on the other parts of Ms Y’s complaint. The Council has agreed to remedy the injustice caused by apologising to Ms Y and Z, making payments to reflect Ms Y’s distress, and the impact on Z of the missed provision. It has also agreed to contact Ms Y about changes to section A and putting social care support in place and make service improvements.

The complaint

1. The complainant, who I am calling Ms Y, complains about the way the Council dealt with her child, who I am calling Z’s Education Health and Care (EHC) plan, special educational needs (SEN) provision, social care assessments and provision. Ms Y says regarding:
1. the review of Z’s EHC plan issued on 10 September 2020:

• The Council’s decision to call for a review of the EHC plan on 10 September 2020, the day it was issued, was a mis-use of the process; and
• The Council then failed to complete the annual review within the required timescales.
2. Section A of the EHC plan:
• Section A of the plan is structured wrongly. It should only contain the views of the child and their parents. It should not include the views of anyone else. section A of X’s plan wrongly includes the views of the school and professionals; and
• The Council has not removed the views of others from section A so that it only records X’s and their views as parents, as she has asked it to do.
3. the EHC plan issued on 25 August 2021:
• Sections H1 and H2 are incorrect. This should be amended to record, in H1, X’s social care needs are recognised and should be dealt with under the Chronically Sick and Disabled Persons Act 1970;
• The Council has not properly considered, or provided proper reasons for a decision about whether Z meets the threshold for tier three complex needs;
• The Council wrongly insisted a further child in need assessment was required before the social care support package could be provided. Any further assessments of Z should be carried out by a properly qualified social worker from the Council’s children’s disabilities team;
• The Council failed to implement the social care support package in accordance with the Tribunal’s decision in July 2021. The personal budget offered was less than the amount required for the provision included in the Tribunal decision.
4. the conduct of the social care assessments carried out at the end of 2020 and in 2021:
• The children’s social care assessment carried out between December 2020 and February 2021 was not completed correctly. It was approached as a safeguarding report instead of a section 17 assessment of Z’s needs as a disabled child;
• The social worker completing the assessment wrongly included her second child and contacted their school, referred to potential child protection in their contact with third parties, and carried out unannounced visits precluding Ms Y from arranging the advocate support she needed for these meetings;
• There was a delay in completing the assessment and it was not shared with her until much later; and
• The Council provided incorrect information about the process for requesting a Parent Carers Needs Assessment which it has a statutory duty to carry out.
5. the provision in the EHC plan issued on 10 September 2020:
• The Council failed to deliver the provision set out in the EHC plan. The OT, SALT and touch-typing provision should have been in place from 10 September. OT and SALT did not start until January 2021, but was less than the amount set out in the plan;
• The Council apologised for this and promised to provide catch up sessions for Z but did not do so; and
• The Council did not provide the touch-typing provision from September 2020 to July 2021. Ms Y had to pay privately for this provision. She wants the Council to reimburse her for this.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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 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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What I have and have not investigated

6. 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.
7. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the provision set out, or the placement named, in an EHC plan we cannot seek a remedy for lack of education or provision after the date the appeal was engaged if it is linked to the disagreement about the school place named or provision in the plan. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
8. The way a council conducts itself within the tribunal proceedings is a matter for the tribunal. It makes the case management decisions and can make cost orders.
9. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
10. We investigate a council’s actions as a corporate body. We do not hold a single officer to account. Any concerns about the professionalism or integrity of an individual officer are better suited to their professional body.

Complaint d) conduct of the Council’s social care assessment

11. I do not dismiss Ms Y’s concerns about the Council’s conduct of the social care assessment from December 2020 to February 2021. But I have not investigated this part of her complaint because:

• The assessment was completed specifically for use as evidence for the tribunal proceedings. The assessment is, in my view, inextricably linked to Ms Y’s appeal to the SEND Tribunal for the inclusion of social care provision in Z’s plan;
• The way a council conducts itself within the tribunal proceedings is a matter for the tribunal. It makes the case management decisions and can make cost orders;
• Any concerns Ms Y has about the professionalism or integrity of any individual officer involved with the completion of the assessment are better suited to their professional body;
• The Information Commissioner is better placed to investigate any concerns Ms Y has about data protection issues regarding the assessment; and
• Ms Y does not appear to have pursued a complaint with the Council about the referral for a carer’s assessment at the time.

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How I considered this complaint

12. I spoke to Ms Y, made enquiries of the Council and read the information Ms Y and the Council provided about the complaint.
13. I invited Ms Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education Health and Care Plans

14. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them.
15. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

The sections of an EHC plan

16. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
17. Section A of the plan should set out the views, interests and aspirations of the child and their parents, or of a young person. This should include the child or young person’s history. (The SEND code of practice:0-25)
18. If written in the first person, it should make clear whether the child or young person is being quoted directly or the views of parents or professionals are being represented.

Arrangements for reviewing an EHC plan

19. Councils oversee delivery of EHC Plans through annual reviews.
20. EHC plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets remain appropriate. Earlier reviews can take place where it is considered a child’s needs may have changed or the stated outcomes are not being achieved.
21. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan (sections B.F and I). The right of appeal is only engaged when the final amended plan is issued.

Amendments following a Tribunal order

22. Where the Tribunal orders a council to amend an EHC plan, the council shall amend the EHC plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) 

The Council’s duty to safeguard and promote welfare of children in need

23. The Council has a duty to safeguard and promote the welfare of ‘children in need’ in its area, including disabled children, by providing appropriate services for them. (The Children Act 1989, section 17)
24. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
25. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.
26. The Council is also required, when undertaking an assessment of a child under section 17, to consider whether it is necessary to provide support of the type referred to in section 2 of The Chronically Sick and Disabled Person’s Act (CSDPA) 1970.
27. Services which can be provided under section 2 CSDPA include:

• practical assistance in the home including home based short breaks / respite care;
• recreational / educational facilities including community based short breaks; and
• travel and other assistance.

The Council’s Children and Young People’s Disabilities Team (CYPDT)

28. The CYPDT is part of Children’s Social Care and provides services to disabled children and young people in the Council’s area. Its published policy is available here: Reading Directory | Children & Young People’s Disabilities Team (CYPDT)
29. The eligibility criteria for receiving CYPDT services are:

• Children and their families whose main need for services arises out of the children’s disabilities or intrinsic condition; and
• These conditions have a substantial or critical impact on the quality of the child/young person or/and their families’ lives; and
• The needs cannot be met by universal/targeted services alone; and
• The child/young person’s disability is both permanent and substantial.

30. A referral for an assessment for eligibility for CYPDT services should only be made when it is considered the impact of the child’s impairment on their life is too great to be addressed by level 1 provision.
31. An assessment for eligibility for CYPDT services will be carried out by a CYPDT officer.
32. In circumstances when a child has a disability but does not meet the CYPDT eligibility criteria they can access an assessment to consider interventions under section 17 of the Children Act 1989.

What happened

33. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

September 2020: Z’s first EHC plan

34. Z has special educational needs. Their first final EHC plan was issued on 10 September 2020. This:

• named their placement as their current mainstream school;
• set out their SEN provision; and
• listed the advice gathered for the plan. This included a report dated August 2020 from an Occupational Therapist from Berkshire Children, Young People and Families NHS Healthcare Service.

35. The same day the Council told Ms Y it would review the plan.
36. The annual review meeting was held on 1 December 2020.

Ms Y’s appeal to the SEND tribunal

37. Ms Y appealed to the tribunal against the special educational needs described in Section B of Z’s plan, the provision specified in Section F and the placement named in Section I.
38. She also asked the tribunal to make recommendations about Z’s social care needs related to their special educational needs and the provision required to meet those needs.

December 2020: The Council’s social care assessment

39. The Council’s children’s social care service started a social care assessment for Z in December 2020. This was in a response to a referral by the Council’s SEN team.
40. The referral record noted Ms Y was appealing to the tribunal, had asked for a social care assessment and already engaged her own social worker to carry out an assessment. Ms Y’s solicitor and the Council’s legal team had asked for a social care assessment in line with this.
41. The Council’s assessment was completed in February 2021. The assessment report said:

• It was a children’s social care single assessment;
• Both Z and their sibling were the subject children;
• It was not being completed as part of a child protection investigation;
• There was no evidence to suggest there were any safeguarding issues; and
• The referral did not meet the threshold for a Child in Need plan;

42. It also said consideration had been given to a referral to the CYPDT. Referrals to CYPDT were made through the completion of a single assessment identifying a further need under S17 of the Children Act. As Z had not been assessed as a child in need, a referral to CYPDT had not been made.
43. The manager reviewing the report concluded:

In regard to whether we at social care feel the EHC plan is relevant for Z’s needs we are not qualified to comment as we assess safeguarding issues and none were identified during the course of this assessment for either child.

March 2021: independent social worker’s social care assessment

44. Ms Y arranged for an independent social worker to complete an assessment of Z’s social care needs in support of her request to the Tribunal for social care provision.
45. The independent social worker concluded in their assessment report Z should be accepted as a Child in Need in accordance with section 17, as they were a disabled child.
46. They also made recommendations about the social care support which should be provided for Z.

May 2021: the Council’s response to the social care assessments

47. A manager in the Council’s Access and Assessment team reviewed the assessments by the Council’s children’s social care team, and the independent social worker. They told Ms Y:

• In their view Z was a Child in Need under the Children Act;
• It was accepted this was not made very clear in the initial single assessment; and;
• asked for Ms Y consent to complete a further assessment to assess Z’s needs in conjunction with the existing reports.

21 July 2021: The tribunal decision

48. The tribunal issued its decision setting out its conclusions and orders. It noted the Council and Ms Y had been able to agree most of the wording to be included in sections B and F of Z’s plan and the placement to be named in section I.
49. Its conclusions included:

• It had the single social care assessment carried out by the Council and the report by Ms Y’s independent social worker. It considered the Council’s assessment was significantly undermined by the conclusion Z was not being assessed as a child in need. On balance it preferred the independent social worker’s evidence; and
• In relation to sections H1 and H2, as far as provision was concerned it agreed in principle Z should have 1:1 support to engage in activities outside school hours based on the independent social workers recommendations. But it did not agree this should include two hours after school.

50. It ordered the Council will amend Z’s EHC plan by deleting the contents of sections B, F and I and replacing them with the corresponding sections in the annexed plan.
51. It recommended the Council amend Z’s plan by deleting the contents of sections C,G, D and H1/H2 and replacing them with the corresponding sections in the annexed plan.

25 August 2021: issue of Z’s final EHC plan

52. The Council issued Z’s final plan as ordered by the tribunal. It named a specialist school as Z’s placement.
53. Section A of the plan – headed Z’s views, interests and aspirations for the future – was divided into two parts:

• The first part included details about play, schooling, health and aspirations. It set out things Z liked and didn’t like. It confirmed this part was completed based on observations and discussions with Z from those who had worked with them; and
• The second part set out Z’s history including information on diagnosis.

54. Section H1 - the section setting out any social care provision that must be made for Z under section 2 of the Chronically Sick and Disabled Person’s Act 1970 - said no outcome was identified.
55. Section H2 - the section setting out the details of any other social care provision reasonably required by the learning difficulties and disabilities resulting in Z having special needs - set out provision to meet the outcome identified of support for Z’s family as:

• Social care provision of a direct payment to support Z to participate in activities outside the family home;
• Z needed four hours of 1:1 support at weekends to help them access an activity of interest; and
• During the school holidays Z would receive an additional eight hours a week of 1:1 support by a specialist provider to access activities.

September 2021: new school placement

56. Z started at the specialist school named in their plan in September 2021.

August to December 2021: contact about Z’s social care provision

57. The Council’s children’s services team contacted Ms Y about the Tribunal’s recommendations for Z’s social care support. The Council said it would have to carry out a section 17 assessment to implement the provision.
58. Ms Y told the Council she would not consent to this assessment. It was not needed because the tribunal had made its recommendations based on the independent social worker’s report.
59. Children’s services completed a further assessment of Z based on the information it had available. It referred this together with the tribunal’s recommendations to its CYPDT panel.
60. The panel’s view was:

• Z’s needs did not meet its threshold;
• Z should be supported by a package delivered through a Child in Need plan for which Ms Y’s consent was needed; and
• Short breaks support was agreed together with direct payments for a personal assistant at £9 an hour to provide four hours support a week during term time and an additional eight hours a week during holidays.

61. The Council again told Ms Y it could not put Z’s social care provision in place without first completing a section 17 assessment and delivering the provision through a child in need plan. As she had not provided this consent, it would now close its case.
62. To date, the social care support recommended by the tribunal has not been provided to Z.

Ms Y’s complaint

63. Ms Y complained to the Council about its refusal to provide Z’s social care support without first completing a further assessment, the conduct of its previous assessments and a number of other issues relating to Z’s EHC plan.
64. She was not satisfied with the Council’s responses to her complaint and brought it to us.

My view – was there fault by the Council causing injustice?

Complaint a) the review of Z’s EHC plan issued on 10 September 20201

65. Ms Y questions the need to call for another review on the day Z’s final plan was issued. The Council says it called the review so that NHS occupational therapy advice it had not received in time to be included in the final plan, could be added.
66. The law says an EHC plan must be reviewed at least every 12 months. It does not impose any restriction on an earlier review. But I don’t propose to consider further whether there was any fault or failure by the Council in calling for an early review of Z’s plan in September 2020 and holding a review meeting in December 2020.
67. This is because I don’t consider calling the early review caused any injustice. Ms Y’s right to appeal was engaged when the Council issued the final plan on 10 September 2020. And as she appealed to the tribunal in December 2020, any further action or delay regarding the review would have been superseded by the Tribunal proceedings and decision.

Complaint b) Section A of the EHC plan

68. I appreciate parents are not able to appeal to the SEND Tribunal about the content of section A. But as this section is intended to set out the views of the child and their parents, I consider the Council should work with the family to agree what is included in the section.
69. Here, Ms Y told the Council, when it first issued the plan in September 2020, she was unhappy with the content of section A. And she has repeatedly asked it to change this. The Council did not take any action in response to her requests.
70. The Council now says it can amend Section A to reflect Ms Y’s concern about its content as part of the ongoing annual review process. But in my view, the failure to date to properly address this concern with Ms Y is fault, causing her distress and frustration.

Complaint c) the final EHC plan issued on 25 August 2021

71. Part 1 of complaint c): I do not consider there was fault by the Council with the content or form of the final plan issued in August 2021. This is because:

• The tribunal specified that no outcome was identified in section H1, and the social care provision it recommended was set out in section H; and.
• It issued the final plan in the form agreed between Ms Y and the Council, the tribunal’s recommendations about social care provision, and as directed by the tribunal in its decision.

72. Part 2 of complaint c): I have not found fault by the Council in the way it considered or provided reasons for a decision about whether Z met the threshold for tier three complex needs. This is because:

• The Council asked Ms Y in May 2021 for consent to carry out a further assessment of Z’s needs. Ms Y did not give this consent;
• The CYPDT panel considered Z’s eligibility for its services based on the information available to it at that stage. Its view was Z did not meet its threshold; and
• If Ms Y wants the Council to re-consider Z’s eligibility for CYPDT services it is open to her to contact the CYPDT and ask for an officer to complete an assessment.

73. Part 3 of complaint c): I have found fault by the Council in insisting a further child in need assessment was required before it could provide Z’s the social care support package. This is because:

• I understand the Council’s standard procedure is to carry out a section 17 assessment and deliver any social care support through a child in need plan. But I consider the position was different here because of the SEND tribunal proceedings and the tribunal’s recommendations about Z’s social care provision;
• The Council confirmed in May 2021, as part of the tribunal proceedings, after considering its own social care, and the independent social worker’s, assessments, it had assessed Z as a child in need:
• Although the tribunal recommendations were not legally binding orders, the Council agreed to implement these recommendations, as confirmed by the CYPDT panel decision; and
• So, having already accepted in the tribunal proceedings it had assessed Z as a child in need, and made a decision to make the social care provision recommended by the tribunal, there was no requirement, in my view, for it to insist on a further assessment.

74. I note Ms Y’s request that any further assessments of Z should be carried out by a properly qualified social worker from the Council’s children’s disabilities team. This is not an issue I can determine as part of this complaint. If Ms Y is unhappy with the way any future assessments are conducted, she should raise this with the Council at the time.
75. Part 4 of complaint c): I have found fault by the Council in failing to put in place the social care package it decided it should provide to Z. It agreed to make this provision for Z but has not done so.
76. I have not found fault with the Council’s decision about the hourly rate for the personal assistant providing Z’s 1:1 support. The Council says it offered its standard hourly rate. The appropriate hourly rate for a personal assistant is a decision for the Council to make. It is not for me to say what it should be.

Impact of faults found in parts 3 and 4 of complaint c)

77. I consider these faults have caused Ms Y and Z injustice. Because the Council did not make the direct payments it agreed to fund Z’s social care support included in section H2 of their EHC plan, Z has missed out on this provision since August 2021.
78. The failure to fund the agreed provision for Z has also caused Ms Y distress.

Complaint e) about Z’s SEN provision from September 2020 to July 2021

79. I have considered whether this part of Ms Y’s complaint about the provision in the EHC plan issued on 10 September 2020 is inextricably linked to her appeal to the SEND Tribunal about the provision and placement named in Z’s plan.
80. My view is that the missing provision Ms Y complained about in the school year 2020/2021 – Occupational Therapy (OT), Speech and Language Therapy (SALT) and touch typing – can be separated from the appeal issues.
81. Ms Y told us the OT, SALT and touch-typing provision should have been in place from 10 September 2020. OT and SALT did not start until January 2021, but was less than the amount set out in the plan. The touch typing was never provided and Ms Y had to pay privately for this.
82. On this basis I have found fault by the Council in failing to deliver these parts of Z’s provision in the school year 2020/2021.
83. We usually consider a remedy payment of between £900 and £2,400 a term to reflect the impact of missed provision on the child or young person.
84. Here I am recommending a remedy payment of £1,300 for the missed provision in the term from September to December 2020 and £900 a term for the two terms from January to July 2021 (a total payment of £3,100 for the impact on Z of the missed provision in 2020/2021).
85. The failure to deliver Z’s provision also caused Ms Y distress and frustration during this period.

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Agreed action

86. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Ms Y for its failures to: respond to her concerns about section A; put Z’s social care support in place; and deliver all Z’s SEN provision in the year 2020/2021. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making this recommended apology and the apology to Z below;
2. apologise to Z, in an age-appropriate way, for the upset caused by its failure to put her social care support in place and deliver all her SEN provision in the year 2020/2021;
3. pay Ms Y £500 to reflect the distress caused by its failures to: respond to her concerns about section A; put Z’s social care support in place; and deliver all Z’s provision in the year 2020/2021. This is a symbolic amount based on our guidance on remedies;
4. pay Ms Y £3,100, as a remedy for Z’s benefit, for the impact on Z of the missed SEN provision in the year 2020/2021;
5. pay Ms Y a total of £13,997.20, as a remedy for Z’s benefit to recognise the impact of the missed social care support. This calculation is based on:

• 320 personal assistant support hours a school year including school holidays, at the Council’s standard hourly rate, taking into account the increases in this hourly rate from July 2021 to date;
• two school years and school holidays from September 2021 to August 2023; and
• the autumn term from September 2023 to 31 May 2024.
6. work with Ms Y to set up the direct payments for a personal assistant to provide the support set out in section H2 of Z’s EHC plan; and
7. contact Ms Y about her concerns with the content of section A of Z’s plan and, as it has offered to do, work with her to make any appropriate changes.

87. And within three months from the date of our final decision, the Council has agreed to review its procedures for:
1. making referrals for social care assessments required for SEND tribunal proceedings to ensure the appropriate assessment is completed by the appropriate team; and
2. arranging health and social care support in cases where it has decided to implement a tribunal’s recommendations and issue guidance about this to relevant staff.
88. The Council should provide us with evidence it has complied with the above actions.

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Final decision

89. I have found fault by the Council as set out above causing injustice. The Council has agreed to carry out my recommendations as a suitable way to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman