Summary: Mr and Mrs X complained the Council failed to provide an adequate remedy for their complaint about its failure to ensure their child Y was receiving social care provision in her Education Health and Care Plan. They also complained about the way the Council dealt with their complaint. We found fault causing avoidable distress, frustration, time and trouble and a loss of social care support to which Y was entitled. The Council has agreed to our recommendations to remedy the injustice and will provide the following: an apology, payments and evidence the Council has implemented changes to its services to minimise the risk of recurrence.

The complaint

1. Mr and Mrs X complained about the outcome of the Council’s investigation into their complaint. They said the Council failed to agree an adequate remedy for its failure to implement social care provision in their child Y’s Education Health and Care Plan (EHC Plan).
2. Mr and Mrs X said this caused them avoidable frustration and distress and caused Y a loss of social care provision.

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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 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 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 evidence provided by Mr and Mrs X and the Council as well as relevant law, policy and guidance.
7. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

8. The statutory children’s complaints procedure is a three-stage process set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
9. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.
10. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan setting out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section H2 contains social care provision reasonably required by the learning difficulties or disabilities which result in the child having SEN.

11. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must maintain the plan and treat it as if made by the new council. This means the new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  

What happened

2023

12. Y has SEN and her EHC Plan of August 2023 was issued by a different local authority where Y and her family lived. Section H2 said Y would receive support for up to 12 hours each four weeks for commissioned social care services or a direct payment to be reviewed once she settled in school. The support was to improve Y’s relationships, increase her confidence, develop trust and improve emotional regulation in the home and community.
13. The family moved into the Council’s area in September 2023. The other council had already referred Y to the Council before the move.

2024

14. Mr and Mrs X complained to the Council in January 2024 about the delayed provision of social care services set out in Section H2 of Y’s EHC Plan. Mr and Mrs X had also complained previously to the Council in September 2023 about another matter. The Council combined both complaints and issued a stage one response in the middle of February 2024. Mr and Mrs X contacted the Council on the day they received the stage one complaint response and asked for escalation to stage two. The Council decided to put the complaint through the statutory complaint procedure for children’s social care.
15. The Council carried out a social care assessment in April 2024 (called a single assessment). The reason for the assessment was Y is a child in need of intensive support due to her mental health condition. The outcome of the assessment was the Council agreed the funding and social care support set out in paragraph 12.
16. A Council investigator met with Mr and Mrs X in the last week of April to discuss the complaint. The independent person met with them in the last week of May. The scope of the investigation was agreed in the middle of June.
17. I have summarised the key points of the stage two report of August and the Council’s response to the report. The Council upheld most of Mr and Mrs X’s complaints including:
• The complaint was wrongly put through the corporate procedure at stage one and failed to answer the most important element: Y was still without any social care provision.
• While the complaint had points falling into the corporate and statutory process, the main concern was the provision of children’s social care services and so it fell most appropriately within the statutory process.
• There was avoidable delay in dealing with the complaint.
• They did not receive an explanation of what process the meeting held in April would follow, and that during the meeting they felt the need to have Y’s advocate join them. Also, following the meeting, there was a lack of communication from the complaints team or anyone else regarding the delayed provision of services for Y
• Poor communication by the Council’s social care staff resulted in a significant delay in obtaining a social care assessment and provision of services for Y. At the time of agreeing the complaint investigation, Y was still not in receipt of a satisfactory service through Derbyshire Social Care.
• They were unaware that a single assessment had been completed for Y and that they had not received a copy, were not given an opportunity to confirm accuracy of the assessment, and the case had been closed without them being given any support or direction to seek out other professional support.
• As a result of the meeting held in April, a copy of the single assessment was sent to Mr and Mrs X. The assessment concluded with inaccurate advice being given regarding Y needing to have a child in need plan to be able to access the adoption support and special guardianship support fund.
• The investigation recommended a symbolic payment of £200 to reflect avoidable frustration caused by the delay in complaint handling and reimbursement of social care provision that Mr and Mrs X had funded.
18. The Council offered a payment of £200 to reflect avoidable distress in complaint handling and apologised. It also offered to reimburse Mr and Mrs X for social care services they purchased for Y, subject to them providing evidence of expenditure. The Council also said it would update guidance to staff around the criteria for accessing the adoption support fund.
19. Mr and Mrs X were unhappy with the outcome at stage two and asked the panel at stage three to review the points of complaint not upheld.
20. The outcome to stage three of the complaints procedure in November 2024 was the panel upheld the points not upheld at stage two:
• Staff should have shared an agenda with Mr and Mrs X for the meeting in the last week of April and should have told them they could have an advocate
• There was a lack of professionalism in arranging the meeting and it was not recorded with minutes and this meant Mr and Mrs X could have felt dismissed and that they were not entitled to complain
• They did not receive sufficient support or direction after the single assessment and Y’s case was closed prematurely before services commenced.
• The Council would reimburse them for any service they funded that it should have arranged in respect of social care provision in Y’s EHC Plan
• Y was lost in processes that should have been supporting her. The referral and complaints processes were both focussed on which path to follow (process) rather than quick resolution for Y.
21. The panel recommended:
• A review of the new system (‘IDOCS’) for triaging and accepting referrals into SEND and Starting Point (Staring Point is the Council’s first contact team for childrens social care)
• SEND and Starting Point should ask for relevant documentation from transferring local authorities in order to make timely decisions
• Families should receive an agenda and be given an opportunity to bring a support person and to have minutes to review after a meeting
• Y should receive an apology.
22. Mr and Mrs X told me the Council commissioned two hours a week of support from a social care provider for Y to access sporting and leisure activities between the end of May and November 2024. She said the provider stopped in November because it didn’t have enough staff and there was pressure on its service to provide care and support to more adults over the winter period. Mr and Mrs X said Y has had no social care provision since November 2024 and the only action the Council has taken to address this is to offer them a personal budget/direct payment, which they do not want.

Findings

23. The previous council had notified the Council of Y and her family’s move before it took place. So, the Council should have ensured Y’s social care provision was in place from September 2024 so the transition between areas was smooth and with no gaps in provision. The failure to do so was fault as it was not in line with Regulation 15 of the SEND Regulations. This caused Y a loss of social care provision in section H2 of her EHC Plan to which she was entitled.
24. The Council has accepted fault in complaint handling. There were delays, a lack of communication, poor triaging and a failure to identify all areas of fault. This was fault causing avoidable frustration, distress and time and trouble.

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Agreed Action

25. Within one month of the final decision, the Council should:
• Secure the up to 12 hours a month of social care provision in Section H2 of Y’s EHC Plan.
• Apologise for the avoidable distress, time and trouble and frustration caused by poor complaint handling and for failing to ensure Y was getting the social care provision in her EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Make Mr and Mrs X a payment of £250 to reflect the injustice caused by poor complaint handling (avoidable distress and time and trouble)
• Make Mr and Mrs X an additional symbolic payment of £250 to reflect avoidable frustration and distress caused by the delay in securing Y’s social care provision and the avoidable time and trouble incurred arranging it themselves.
• Make Y a symbolic payment of £1500 to reflect the loss of opportunity for her to receive social care support to improve her relationships, increase her confidence, develop trust and improve emotional regulation in the home and community for the following periods:
1. September 2023 to May 2024
2. November 2024 to April 2025.

This payment for Y is higher than we might usually recommend by way of a symbolic payment for avoidable distress, but it is justified because of: (1) the prolonged period of missed opportunity, (2) Y’s age – she is at a stage where making relationships with others and engaging with people outside her family is crucial and (3) her vulnerability.

26. The Council will also, within one month, provide us with documentary evidence it has completed/implemented the recommendations made by the stage three panel, that is:
• The review of the new system (‘IDOCS’) for triaging and accepting referrals into SEND and Starting Point
• SEND and Starting Point are asking for relevant documentation from transferring local authorities in order to make timely decisions
• Families are receiving an agenda and are given an opportunity to bring a support person and to have minutes to review after
• Y has had an apology.
27. The Council should provide us with evidence it has complied with the actions in paragraphs 25 and 26.

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Decision

28. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman