Summary: The Council failed to make sufficient efforts to provide the social care set out in Child Z’s Education, Health and Care plan (EHC plan) since May 2021. This caused him to miss out on care workers to take him to independent activities for a period of nineteen months. It also caused his mother, Ms X, distress as she had to meet the care needs in the meantime, which affected her being able to manage her own physical health conditions. The Council has agreed to apologise and pay Ms X £5,700 - to be used for Child Z’s benefit - to reflect the missed social care provision. The Council has also agreed to pay Ms X £400 to reflect the distress caused to her over this period and carry out several service improvements.

The complaint

1. Ms X complains that the Council failed to secure the social care provision set out in her son’s EHC Plan since May 2021.
2. She said this has caused her son to miss out on provision to which he was entitled and caused them both 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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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.
6. 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 placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
7. 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)
8. 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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What I have and have not investigated

9. I have exercised discretion to investigate events which occurred earlier than 12 months before Ms X complained to us. This goes back to May 2021. Therefore, my investigation will cover the period between May 2021 and December 2022, when Ms X complained to us. This is because:
• Ms X appealed to SEND Tribunal in relation to some of the social care provision in her son’s EHC Plan (the SEND Tribunal did not consider the issue I am investigating); and
• Ms X did not realise that part of her complaint regarding social care was for the SEND Tribunal and part was for us. I think it was reasonable for Ms X not to be aware of this which is why she did not complain to us earlier.

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How I considered this complaint

10. I considered the information provided by Ms X and the Council.
11. I considered the relevant law and guidance as set out below.
12. I considered our Guidance on Remedies.
13. I considered comments made by Ms X and the Council on my draft decision before making a final decision.

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What I found

Law and guidance

EHC plans

14. A 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 EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different educational setting. Only the SEND Tribunal can do that.
16. Councils are 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.

Social care provision in EHC plans

17. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child/young person’s social care needs.
18. Support provided by Early Help or under section 17 of the Children Act should be included in Section H2 of the EHC plan.

What happened

19. Child Z is 16 years old. He has physical and neurodevelopmental disabilities. He has an EHC plan. He also had a Family Intervention Worker due to him being on a child in need plan.
20. In May 2021 the Council referred Child Z to the Somerset Supporter service. This is a service which matches care workers with people needing care. It is not part of the Council and the care workers can choose which people with care needs to work with.
21. The Council made this referral, as Child Z’s EHC plan said in Section H2, under social care provision, that he should have a care worker to take him to activities independent of his parents, for three hours per week during term-time and eight hours per week during school holidays. However, Child Z was not matched with a care worker through this service.
22. The Council also gave Ms X the option of arranging the care for Child Z by seeking a suitable care worker herself and funding it through direct payments provided by the Council. Ms X told the Council she did not want to use direct payments to arrange her son’s social care as she did not want the burden of being an employer.
23. On 3 June 2021, the Council wrote to Ms X to say if there was not a match through the Somerset Supporter service, and Ms X did not want to administer the direct payments herself, the Council could provide a ‘managed direct payment’ where the Council managed it on her behalf.
24. On 27 September 2021 the Council issued a final EHC Plan for Child Z. This again said the Council would provide three hours of term-time care for Child Z per week and eight hours per week in the holidays. By this time, Child Z had still not received any of the agreed care.
25. On 19 January 2022 Ms X complained to the Council. She said her son was not accessing the social care provision in his EHC plan. She said this was having a negative impact on his welfare and development. Ms X said it was also impacting her negatively, as the lack of social care for Child Z was affecting her ability to manage her own physical health conditions.
26. On 9 February 2022 the Council responded at stage 1. It said:
• Ms X preferred to use a ‘Somerset Supporter’ rather than use the direct payments option for providing Child Z’s care. However, a Somerset Supporter still had not become available for Child Z that matched with his needs.
• It offered instead for Child Z’s Family Intervention Worker to take him out to activities and to drive Ms X and Child Z to some other activities together, as she did not feel confident doing them alone. It said Ms X declined this option.
27. Ms X complained at stage 2 on 16 February 2022. She said it was proving too slow to find Child Z a match with a Somerset Supporter and he still was not receiving the social care in his EHC plan. She said she was struggling to cope with providing all of his care needs herself, which included waking night care.
28. Ms X also asked what was happening with Child Z’s funding for the social care he was not receiving. She asked if the care hours which were funded but not provided could be used flexibly, such as for a holiday or accessing sports. Ms X asked instead if the Council could offer the family short breaks, disability childminders, or after school activities.
29. On 15 March 2022 the Council responded at the final stage of the complaints process. It said:
• It had offered the direct payments option and she had refused this. Child Z’s Family Intervention Worker had also offered to take him out alone, as well as with Ms X to activities, but Ms X declined the offer.
• It said the Somerset Supporters are not employed by the Council and there is limited availability for them.
• It confirmed that Child Z’s funding would only be paid when a match was found and this was the case with Somerset Supporters service or direct payments.
• Regarding Ms X’s request for the unused hours to be used in other ways once there was a match, such as a holiday, it said the funding was only to be used to meet the assessed need. It offered Ms X a new assessment to be carried out if she wished.
• It also offered to carry out a social care assessment in light of the issues she raised regarding Child Z’s sleeping and her providing waking night care to her son.
30. On 31 March 2022 the Council issued a final EHCP for Child Z which included social care provision in Section H2. This said he would benefit from 1:1 adult support provided other than by his parents. The EHC Plan said the hours and frequency of the care were to be confirmed.
31. Ms X appealed the EHC plan to the SEND Tribunal. She appealed because she wanted:
• changes made to Child Z’s speech and language provision;
• changes made to his occupational therapy provision; and
• his social care provision to be increased.
32. In November 2022, the Tribunal decided that there was not enough evidence to recommend changes to Child Z’s speech and language, or occupational therapy provision.
33. However it said it was ‘dismayed’ that the social care provision that was first put in Child Z’s EHC plan in May 2021 was still not in place. The Tribunal said this was ‘clearly unacceptable’. The Tribunal made no order regarding this.
34. In December 2022 Ms X complained to the Ombudsman. She said her son’s social care provision still was not in place and she continued to struggle to meet his care needs herself.

My findings

35. The Council was aware as early as June 2021 that Ms X did not want to use direct payments to manage Child Z’s care, whether these were managed by the Council or herself. The Council also knew that its other option, of the Somerset Supporters service, had no guarantee of providing Child Z’s social care provision and to date it has not been able to do so.
36. The Council did offer for the family’s support worker to drive Ms X and Child Z to some activities and that the worker could take Child Z to some activities without Ms X as well. If Ms X had accepted this offer, it may have temporarily, and in part, alleviated some of the injustice caused to Child Z.
37. However this offer of part of the social care provision was not a suitable replacement for the full amount of social care provision that Child Z was entitled to receive and did not. The Council offered no other means for Child Z to access the social care provision in his plan between May 2021 and December 2022.
38. The Council failed to make sufficient efforts or provide adequate options for Child Z to access the social care provision in his plan. The Council was at fault. This fault caused Child Z to miss out on the social care provision in his plan for a period of nineteen months.
39. The Council’s fault also caused distress to Ms X. She raised with the Council several times that she was struggling to meet Child Z’s needs for activities without the social care in place. Ms X also said this was affecting her ability to manage her own physical health conditions.
40. I have recommended several remedies to recognise the injustice caused to both Child Z and Ms X by the Council’s fault.

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Agreed action

41. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Child Z and Ms X for the injustice caused by the faults in this case;
2. Pay Ms X £400 to recognise the distress caused to her by the Council’s fault;
3. Pay Ms X £5,700, to be used for Child Z’s benefit, in recognition of the nineteen months he has been without the social care provision in his EHC plan and which he needed to access activities independent of his family. This has been calculated at £300 per month;
4. Demonstrate that it has made Ms X offers of alternative ways that Child Z can access the care workers needed for him to receive his social care provision. This should not include the options already referred to in this decision, which were not adequate.
42. Within three months of the date of the final decision, the Council has agreed to:
1. Demonstrate that it has taken steps to improve its availability and range of social care staff in order to meet the social care needs of its children and young people with EHC plans;
2. Remind its SEND staff that where families do not wish to undertake direct payments to manage their children’s social care – managed or otherwise – it must provide meaningful alternative options for the child to access their social care.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have completed my investigation. I have found fault leading to injustice and have recommended an apology, a financial remedy and service improvements.

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Investigator's decision on behalf of the Ombudsman