Summary: We have completed our investigation into Mrs X’s complaint about social care provision for her son. The Council assessed Y’s needs and reached its decision without fault.

The complaint

1. Mrs X complained the Council refused what she regarded as a reasonable adjustment to substitute social care provision for her son’s SEN provision. She said, as a result, he is unable to attend appropriate activities.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
3. 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.
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide it would be reasonable for the person to ask for a council review or appeal. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I have considered Mrs X’s complaint and supporting information.
6. I have also considered the Council’s response to Mrs X and to my enquiries.
7. Mrs 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

Legislation

8. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
9. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child or young person’s social care needs. Where a child or young person is not previously known to social care this will require a new assessment to identify if there are social care needs which need to be included in the EHC Plan.
10. Where the council decides it is necessary for support to be provided under section 2 of the Chronically Sick and Disabled Persons Act 1970 it must include this in Section H1 of the EHC Plan. Support provided by Early Help or under section 17 of the Children Act 1989 (child in need) should be included in Section H2 of the EHC Plan.
11. Statutory guidance “Working Together to Safeguard Children” sets out the concept of an ‘Early Help’ assessment. This can be undertaken by a range of professionals where there are low level needs that do not merit a Child in Need Assessment by social care.
12. The Children Act 1989 (as amended by Children and Families Act 2014) places duties on councils to assess the needs of parent carers of disabled children on ‘the appearance of need’. The purpose of a parent carer needs assessment is to support parent carers to sustain their caring role and support parent carers to work or access education, training or leisure facilities.
13. If a parent disagrees with the social care support set out in the EHC Plan they can make a complaint to the council. Alternatively, if they are going to appeal to the Tribunal about other parts of the EHC Plan, they can ask the Tribunal to consider any is agreement. If the tribunal makes a finding on the social care elements, it is non-binding. (It is not a statutory right of appeal).

What happened

14. Mrs X’s son, Y has SEN. In July 2024, the Council issued Y’s Final Amended Education, Health and Care (EHC) Plan. Under Section H1, Social Care Provision, the Plan identified that the family have been offered 72 hours’ support through a SEN activity provider.
15. It is these hours that Mrs X wants the Council to replace with social care hours. This is so that a personal assistant can attend social activities with Y after school, during weekends and holidays. Mrs X said this is a request for a reasonable adjustment to allow her son to access the activities he wants rather than those offered by the SEN activity provider.
16. The Council refused Mrs X’s request. It explained that SEN activity providers are available to children and young people who have SEN and/or disabilities which means they are unable to access universal services and activities. This includes children with an EHC Plan but also children who may receive other levels of support. However social care hours are only offered to children who have been assessed under a Child and Family Assessment and meet the criteria.
17. The Council assessed Y and concluded that he did not meet the threshold for social care hours. The Council has offered to carry out another assessment of Y’s needs, but Mrs X has declined this.
18. The Council explained to Mrs X that social care provision is separate to SEND provision. These come under different services and have different budgets and are not interchangeable.

My findings

19. There was no fault with how the Council reached its decision to refuse social care hours for Y. The decision was based on the results of an assessment that concluded that Y did not meet the criteria. I have not investigated the content of the assessment as this has been considered at Tribunal.
20. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
21. I have considered the steps the Council took to consider the issue, and the information it took account of when deciding to refuse to swap SEN activity hours for social care hours. There was no fault in how it took the decision, and I therefore cannot question whether that decision was right or wrong.

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Final decision

22. I have completed my investigation. There was no fault with how the Council reached its decision to refuse to replace SEN activity hours with social care hours.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman