Summary: Mrs X complained the Council did not provide sufficient support to her adopted child and to her family. She says the Council’s lack of action led to her child missing school and caused avoidable stress and upset. We found fault by the Council and the Council has agreed to provide a remedy to address the injustice identified.

The complaint

1. Mrs X complained the Council did not provide sufficient support to her adopted child, and to her family when she raised concerns relating to their special educational needs. Mrs X says she asked the Council to provide help for her child’s mental health and to provide assistance in managing their complex behaviour. She says the Council’s lack of action led to her child missing school and has caused avoidable stress and upset to herself and her family. Mrs X would like the Council to work with her to find a resolution that fits her family and to provide a wraparound therapeutic solution for her child.
2. Mrs X also complained about how her child’s school dealt with her concerns, and that the Council did not provide alternative education while her child was out of school.

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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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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)

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What I have and have not investigated

7. I have investigated the complaint referred to in paragraph one of this decision statement, dating back to November 2021. I have not investigated events prior to November 2021 as the complaint relating to the period prior to this date is late.
8. I have not investigated Mrs X’s complaint about a lack of alternative education after the period the final Education, Health and Care plan was issued. I have not investigated Mrs X’s complaint about how her child’s school dealt with her concerns.

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How I considered this complaint

9. I discussed the complaint with Mrs X and considered the information she provided.
10. I made enquiries to the Council and considered the information it provided.
11. Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.
12. 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 found

Post adoption support

13. Adoptive families have a legal right to an assessment of adoption support needs from the local authority responsible for their post adoption support. The assessment covers a range of needs, from mental health and the need for therapeutic services to additional support during a child’s education. If the local authority decides to provide post-adoption support, it can deliver the support by itself or commission outside agencies such as registered adoption support agencies or NHS practitioners to deliver the support.
14. The Adoption Support Fund (ASF) is available to pay for services and training for adoptive parents. To access the fund, a local authority needs to do an assessment of an applicant’s adoption support needs. If the assessment shows these services would be beneficial then the local authority can make an application to the fund.

Statutory complaints procedure

15. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail. The guidance makes clear a complaint about adoption support can be dealt with under the statutory children’s complaints procedure.
16. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
17. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
18. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.

Special educational needs

19. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education or name a different school. Only the tribunal can do this.
20. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
21. 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).

Alternative provision

22. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
23. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Background

24. Mr and Mrs X have two adopted children. Their eldest, Child A, has diagnoses of foetal alcohol spectrum disorder (FASD) and attention deficit hyperactivity disorder (ADHD). Child A also has social, emotional, and mental health needs and has an EHC plan.
25. Mrs X told the Council she was concerned about Child A’s safety at the school they attended, and about Child A’s behaviour at home.
26. The Council carried out an adoption support assessment in May 2021. Following the assessment, the Council says Child A attended music therapy and sibling therapy and says Mr and Mrs X received parental support from an independent therapy provider, commissioned through the Adoption Support Fund (ASF). The Council says in July 2021, Mrs X requested additional support from short break provision and a personal assistant.

What happened

27. This chronology includes key events in this case and does not cover everything that happened.
28. In January 2022, the music therapy and sibling therapy sessions ended due to a breakdown in therapy. Mrs X says she considered the music therapy was not suitable for the family. At about the same time, the Council says Mrs X decided not to continue with the parental support from the independent therapy provider. Mrs X says she was unable to attend these sessions due to child-care issues. Mrs X told the Council not to continue applying for direct payment support to employ a personal assistant due to delays in the process.
29. Mrs X says the Council suggested a residential setting for Child A. In February 2022, Mrs X discussed the possibility of a residential setting with the Council. Mrs X said she considered the Council may need to name a residential setting in Child A’s EHC plan. Mrs X told the Council Child A coped at their current school placement but brought their anxiety home with them. Mrs X also said Child A had recently stopped attending an animal therapy group but asked if there was scope for them to attend different animal therapy sessions. Mrs X says the post-adoption team told her there were no further therapy sessions.
30. Later that same month, the Council told Mrs X it was in the process of liaising with various professionals regarding further support and acknowledged the interventions taken to date had not resulted in the progress that was hoped for.
31. At about the same time, Mrs X complained about the actions of Child A’s school as she was concerned about Child A’s safety following several incidents at the school.
32. In March 2022, the Council told Mrs X it would contact an independent residential school about the possibility of Child A attending. The Council also told Mrs X it would liaise with Child and Adolescent Mental Health Services (CAMHS). The Council referred to a recent meeting with Mrs X and said it agreed it was not in a position to pursue therapy options at that time until a pathway for Child A was made clearer.
33. On 11 March 2022, Mrs X emailed the Council and asked for a caseworker to attend the EHC plan review meeting scheduled for April 2022. Mrs X said Child A’s current school could not meet their needs and said Child A was becoming more violent and aggressive at home. Mrs X said she considered this was mainly because Child A did not feel safe at their current school. Mrs X said the family was at breaking point and was heading for adoption breakdown. The Council acknowledged Mrs X’s request and said it was still waiting to hear from the independent residential school.
34. In April 2022, Mrs X emailed the Council and said she and the family could not cope with Child A’s continued challenging behaviour at home, both verbal and physical. Mrs X told a social worker she considered Child A may no longer be able stay at the address.
35. The Council began a Child and Family Assessment on the same day to assess the issues and concerns raised by Mrs X and their impact on the family.
36. Later that month, the Council agreed to refer the family for Multi-Systemic Therapy.
37. A social worker visited Mrs X in April 2022 to discuss the therapy provided to date, the possibility of a residential setting for Child A, and Mrs X’s previous request for a personal assistant. Mrs X says the social worker told her the post-adoption team could not influence the education department’s decision about a residential setting but could only provide its opinion. Mrs X and the social worker also discussed potential respite provision from Provider B, a facility that offers overnight short breaks and respite for children and young people with complex needs and disabilities.
38. The annual review of Child A’s EHC plan took place on 27 April 2022. At the meeting, Mrs X said Child A did not feel safe at their current school. She said Child A suppressed their feelings when they were at school but then “exploded” when they returned home. Mrs X’s post-adoption social worker said therapeutic support had ended because it was felt Child A could not cope with it. They said it was difficult to consider what therapeutic support would be available if the wider background did not change and said this was the reason a therapeutic residential setting may be a better option. The Council said it would consider a residential setting option for Child A.

What happened next

39. In May 2022, Mrs X told the Council Child A had tried to leave school without permission on several occasions. She said she would not send Child A to school as they were extremely distressed following a further incident at the school.
40. On 11 May 2022, the Council emailed Mrs X. It said Provider B would not offer respite provision because Child A did not meet the referral criteria, specifically, because they did not have a learning disability.
41. Mrs X replied on the same day and said FASD is a learning disability. Mrs X emailed again later that month and said she was disappointed in the lack of support from the Council. Mrs X also said Child A’s behaviour had escalated.
42. On 8 June and 12 June 2022, Mrs X emailed the Council and said she had not received the draft EHC plan.
43. On 13 June 2022, Mrs X asked the Council to arrange an urgent meeting so she could discuss withdrawing Child A from school. Mrs X said she had serious concerns about Child A’s safety at the school. She said she wished to discuss the option of providing education out of school, or the provision of a residential setting. The Council responded and said it would raise Mrs X’s concerns again.
44. Mrs X emailed the Council again in June 2022 about her ongoing concerns regarding Child A’s challenging behaviour. She said Child A required alternative provision while he was not attending school.
45. The Council replied and said it encouraged Mrs X to continue liaising with the school about what support was needed for Child A’s reintegration to school.
46. On 23 June 2022, Mrs X told the Council Child A’s school considered it was parental preference that she did not want Child A to attend. Mrs X said Child A was still not attending and the school was not providing alternative provision.
47. On 24 June 2022, Mrs X complained about the Child and Family Assessment. Mrs X said the social worker carrying out the assessment had not responded to emails and had incurred delays. Mrs X said she wanted a new school for Child A, and therapy that would work. Mrs X said the multi-systemic therapy offered would not work while Child A was still at their current school.
48. The Council called Mrs X to discuss her concerns and on 6 July 2022, emailed Mrs X with a summary of the discussion. The Council said it had listened carefully to Mrs X’s views; it said risk assessments and evidence from Child A’s school led it to consider Child A remained safe at their current school. The Council said it would finalise the EHC plan naming Child A’s current school and said it had arranged a reintegration meeting for Child A. The Council also said there was no evidence Child A required a residential setting and told Mrs X she had the right to challenge its decision via the SEND Tribunal.
49. The Council issued the final EHC plan on 15 August 2022, naming Child A’s current school.
50. Child A returned to school in September 2022.
51. In November 2022, Mrs X says Child A stopped attending school.

Mrs X’s complaint

52. On 9 November 2022, Mrs X complained to the Council. She said the lack of action and the Council’s disjointed approach had led to Child A being out of school. Mrs X said the Council had failed to provide a safe education for Child A.
53. At about the same time, Mrs X asked the Council to arrange an emergency review of Child A’s EHC plan. The Council declined the request because it said the plan was currently under appeal to the tribunal. However, the Council offered to meet with Mrs X to discuss the amendments she had requested.
54. On 24 November 2022, the Council told Mrs X it had decided to complete an adoption support assessment/review. The Council said although it was aware of Mrs X’s support requests, the assessment had to be undertaken to include the views of other agencies, so the Council could make recommendations and apply for funding from the ASF.
55. In January 2023, the Council told Mrs X it was looking into identifying a provider who may be able to offer therapeutic support, as well as looking into play therapy for Mrs X’s other child.
56. The Council provided its stage one complaint response on 4 January 2023. It apologised for the time taken to respond and acknowledged the Council had provided mixed messages from various officers regarding the appropriate next steps. The Council said however, it did not consider its decision making was flawed or noncompliant with relevant legislation. The Council said it was obliged to finalise the EHC plan within 12 weeks from the date of the annual review. It said it finalised the plan on 18 July 2022 and had named Child A’s current school. The Council said it had provided its reasons for naming the school and acknowledged Mrs X’s disagreement regarding this. The Council also acknowledged Mrs X had appealed the EHC plan to the SEND Tribunal. The Council said it was not required to provide alternative provision while Child A was out of school because their absence was unauthorised and because they had a place in a school that was able to meet their needs.
57. Mrs X escalated her complaint to stage two on the same day. She said the Council had not provided a suitable education for Child A.
58. The Council provided its stage two response on 27 January 2023. The Council acknowledged Mrs X considered the involvement of several teams had not felt co-ordinated. The Council said it had held a professionals meeting on 19 January 2023 where it decided to create an integration plan for Child A to return to school. The Council confirmed its view that the school was able to meet Child A’s needs and was a setting that Child A was able to access.
59. Mrs X remained dissatisfied with the Council’s response and brought the complaint to us.

Analysis

60. The amount of information provided as part of this investigation was considerable. In this decision statement, I have not made reference to every element of that information, but I have not ignored its significance.

Complaint process

61. We published guidance for practitioners in March 2021 which explains how councils should apply the regulations and statutory guidance relating to complaints about children’s social care services.
62. The Council should have considered Mrs X’s complaint through the statutory children’s complaints process as the complaint related to post-adoption support. The Council says it regrets it did not recognise the complaint was covered by the statutory process and that Mrs X missed out on the opportunity to have her complaint investigated with external insight. The Council says it would like to offer Mrs X an apology and a financial remedy as a result.
63. It is positive the Council now recognises it should have investigated the complaint via the statutory process, and recognises the resulting injustice to Mrs X. However, the Council’s failure to investigate Mrs X’s complaint via the statutory process is fault.

Alternative provision

64. Mrs X complained the Council did not provide sufficient support to Child A and the family. Part of the support requested related to alternative provision while Child A was out of school, and Mrs X’s requests for a residential setting for Child A.
65. As previously stated, we cannot investigate or seek a remedy for lack of education after the date the appeal was engaged (when the final EHC plan was issued), if it is linked to the disagreement about the school place named. However, we may investigate a period when a child is out of education up to the date where the parent had the right of appeal to the SEND Tribunal.
66. Councils have a duty to arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. However, the duty does not apply simply because a parent refuses to send a child to the educational provision. Education offered by a local authority, regardless of its rejection by the parent, must have been “reasonably available and accessible” to the child.
67. We do not take a second look at a decision made by a council to decide if it was wrong. Instead, we look at the processes followed to make the decision. If we consider a council followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether the complainant disagrees with the decision made.
68. I acknowledge Mrs X’s strongly held view that the school attended by Child A could not meet their needs and was unsuitable and unsafe for Child A. I have considered the steps the Council took to consider the issue, and the information it took account of when deciding the school attended by Child A remained an appropriate setting. There is no fault in how the Council took its decision and I therefore cannot question whether that decision was right or wrong.
69. The evidence indicates an offer of education was “reasonably available and accessible” to Child A, as the school at which Child A attended continued to offer a placement. As a result, there is no fault by the Council regarding Mrs X’s complaint that it failed to offer alternative provision.

Adoption support assessment

70. Mrs X says she asked the Council for support since at least November 2021. However, the evidence shows the Council did not carry out an adoption support assessment until November 2022. (I acknowledge the previous assessment carried out in May 2021; however this lies outside the period under investigation).
71. I acknowledge the Council’s explanation that it offered Mrs X and Child A several types of support. I also acknowledge the Council began a Child and Family Assessment (CAFA) in April 2022. However, this is not the same as conducting an adoption support assessment which is designed to agree a support package based on the family’s identified needs.
72. The Council’s explanation of the CAFA says the assessment “informs” support and planning; therefore, this is not the same as agreeing a support package. In addition, the Council’s email to Mrs X dated 24 November 2022 said “While we are aware of your support requests, the [adoption support] assessment has to be undertaken (and to include the views of other agencies) in order for [the adoption support team] to make recommendations and to be able to apply for any subsequent funding from the Adoption Support Fund (they stipulate no longer than 3 months since the last assessment)”.
73. The Council says it can only carry out an assessment when invited to do so and says Mrs X had disengaged with the therapeutic offer. It says when Mrs X wanted to re-engage, it updated the assessment (previously carried out in 2021) in order to comply with the requirements of the Adoption Support Fund.
74. I acknowledge the Council’s comments but consider there were periods during 2022 when Mrs X demonstrated that she did want to engage with therapy. This is evidenced in the CAFA and the EHC plan review records. As a result, the evidence shows the Council delayed carrying out an adoption support assessment and I have found this to be fault.

The EHC plan

75. Mrs X says the Council delayed issuing the final EHC plan. The evidence shows the annual review took place on 27 April 2022 and the final EHC plan was issued on 15 August 2022.
76. The Council acknowledges a delay and says there were problems with agencies agreeing on the most appropriate placement. It says it made efforts to secure a placement and worked with the school to produce a reintegration plan. The Council says it would like to offer a financial remedy to recognise the distress caused by the delay. I acknowledge the Council’s comments; however the delay acknowledged by the Council is fault.

Meeting held in January 2023

77. Mrs X says she was not invited to a meeting which took place on 19 January 2023 to discuss potential support for Child A.
78. The Council says this was a professional’s meeting where it discussed what support it could offer to support Child A back into education. The Council says it did not take formal minutes at the meeting, but it did write to Mrs X afterwards to provide a summary of the meeting and explain what it discussed.
79. I have reviewed the correspondence between Mrs X and the Council regarding the meeting. Mrs X asked if she could attend but the Council said it considered it was important to hold separate meetings at that time due to the ongoing complaint investigation. There is no evidence of fault in how the Council made its decision not to invite Mrs X to the meeting, and I am satisfied the Council provided an explanation for its decision at the time. The Council also went on to provide a summary of the meeting to Mrs X in a letter dated 23 January 2023. As a result, the Council is not at fault regarding this matter.

Request for respite provision

80. The Council discussed respite provision for Child A as part of its consideration of support to Mrs X and the family. Email correspondence from April and May 2022 refers to the Council’s contact with Provider B. The Council emailed Mrs X on 11 May 2022. It said respite provision from Provider B was not possible because Child A did not meet the eligibility criteria as they did not have a learning disability. Mrs X replied to the Council on the same day and said FASD is a learning disability.
81. The Council did not subsequently seek clarification from Provider B as to whether Child A satisfied the eligibility criteria (given their diagnosis of FASD as a learning disability). It is not known if Provider B could have offered support to Child A and Mrs X at that time, or if Child A satisfied the provider’s eligibility criteria. However, the Council’s failure to follow this matter up with Provider B is fault resulting in a missed opportunity and uncertainty to Mrs X and Child A.
82. Having identified fault, I must consider if this caused a significant injustice. Mrs X says the Council’s actions have caused avoidable stress and anxiety to herself and Mr X, and to their other child. Mrs X also says Child A has been without a suitable education and says the lack of support has negatively impacted their mental health.

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Agreed action

83. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mrs X for the fault identified. The Council’s apology should be in line with our published guidance on remedies which sets out the principles we expect councils to follow when issuing an apology;
2. Make a symbolic payment of £250 to Mrs X in recognition of the missed opportunity in not considering her complaint via the statutory complaints process;
3. Make a further symbolic payment of £1,000 to Mrs X in recognition of the stress and anxiety caused by the delays in issuing the EHC plan and carrying out the adoption support assessment, and in failing to seek clarification about the eligibility criteria from Provider B;
4. Seek clarification from Mrs X regarding whether she would like the Council to make further enquiries with Provider B regarding eligibility to respite breaks;
5. Provide training/guidance to staff regarding FASD to ensure provision from all appropriate support providers is considered as part of post-adoption support;
6. Ensure all complaints staff are aware of the scope of the statutory complaints procedure in respect of post-adoption support, and
7. Review the way in which requests for post-adoption support are considered with regard to carrying out adoption support assessments to see if the Council can identify areas where the process may be speeded up and/or streamlined.
84. The Council should provide us with evidence it has complied with the above actions.

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Final decision

85. I have found fault by the Council and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman