Summary: Mrs B complained about the extent of support she had received over recent years from the Council, in meeting the needs of her adopted child. We upheld the complaint, finding the Council failed to provide some services, despite saying it would in response to a complaint and following assessments. This resulted in a loss of service and distress to Mrs B. The Council accepted these findings and agreed action to remedy this injustice, set out at the end of this statement.

The complaint

1. Mrs B complained about the service provided to her and her adopted child (‘C’). Mrs B said despite C having complex needs, the Council failed to provide services to support them and the family. In particular, Mrs B questioned why C did not receive support from the Council’s children with disabilities team and / or its post-adoption services.
2. Mrs B said for several years she had tried to secure suitable support and intervention for C. She said meeting C’s needs without this support left her at ‘rock bottom’ and close to ‘breaking point’. She received support for her mental health but could not work at full capacity. Mrs B felt distress at the perceived lack of interest by the Council for her wellbeing.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. In some circumstances it can also consider appeals about social care provision. We refer to it as the SEND Tribunal in this decision statement.
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 an information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted). This will be before any publication on our website.

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How I considered this complaint

9. Before issuing this decision statement I considered:

• Mrs B’s complaint to the Ombudsman and any supporting information provided;
• a correspondence file containing a complaint made by Mrs B which passed through all three stages of the statutory complaint procedure for children services complaints (see below for explanation). This pre-dated our investigation;
• information provided to me by the Council in response to enquiries;
• any relevant law, Government guidance or Council policy referred to in the text below;
• any relevant guidance published by this office referred to in the text below.

10. I also gave Mrs B and the Council a chance to comment on a draft version of this decision statement. I took account of their responses before finalising the statement.

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What I found

Relevant Legal and Administrative considerations

Children’s social care – general

11. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them.
12. When undertaking an assessment of a child under section 17, the Council must consider if it needs to provide support referred to in Section 2 of the Chronically Sick and Disabled Person’s Act (CSDPA) 1970. This can include practical help in the home; home based short breaks and respite care; and support to attend recreational / educational facilities including community based short breaks.
13. Assessments should take account of the needs of the whole family. While a council may offer some services directly to the child, it can also offer services under section 17 to parents or siblings.
14. Parents / carers of a child in need can ask for a direct payment (DP) to meet any assessed needs. This enables them to buy services directly from service providers. The Council cannot force a parent or carer to accept a direct payment, and if requested must commission a service direct.

Education, Health and Care (EHC) Plans

15. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and arrangements to meet them. The EHC Plan has different 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. 
16. Where the council decides it is necessary to provide support under section 2 of the CSDPA 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 in Section H2 of the EHC Plan. 
17. There is a right of appeal to a SEND Tribunal against:

• how the Plan describes a child or young person’s SEN, the special educational provision specified, the school or placement or that it specifies no school or other placement; or
• an amendment to these elements of an EHC Plan.

18. If a parent disagrees with the social care support set out in an EHC Plan they can ask the Tribunal to consider this as part of an appeal. But this only where they appeal parts of the plan about education need. If a tribunal makes a finding on the social care elements, it is non-binding.
19. As an alternative to appealing about social care support for a child, a parent can also use the social care complaint procedure summarised below.

Children’s social care – the statutory complaint procedure

20. 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.
21. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
22. If the complainant is unhappy with the stage one response, they can ask for consideration at stage two. Councils will appoint an investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
23. Following the investigation, a senior manager at the council (the adjudicating officer) should carry out an adjudication. The officer considers the IO report. They decide the council’s response to the complaint, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
24. 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 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.
25. Government set up this procedure to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Consequently, if a council has investigated something under the statutory children’s complaint procedure, the Ombudsman would not normally re-investigate it.
26. 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.

Chronology of key facts

General background

27. C is an adolescent whom Mrs B and her husband adopted when they were one year old with their sibling. C has a diagnosis of Foetal Alcohol Spectrum Disorder (FASD), Attention Deficit Hyperactivity Disorder (ADHD) and autism. Below, I say more about how these diagnoses impact on C and their resulting needs (see paragraph 42).

Mrs B’s complaint

28. In late 2022, Mrs B made a series of inter-connected complaints about the service she received from children’s social care services. After receiving replies to these from the Council at stage one of the statutory complaint procedure, Mrs B escalated her complaint to stage two of the procedure. She agreed with an IO a summary of her complaint that encompassed ten issues. Of relevance to this investigation, Mrs B’s complaint included the following:

• that C’s case should sit with the Council’s ‘children with disabilities’ team (part of its children’s social care services);
• that C did not receive support they needed as identified in an independent assessment;
• that she received no respite care and that she could not receive direct payments to buy respite care or foster care;
• that the Council lacked understanding of FASD and had not sought expert advice to inform the support it should provide to C.

29. In August 2023, the IO produced a report and I summarise their findings on these matters as follows:

• that C’s case did not meet the criteria for support from its children with disabilities team;
• that C had received support from the Council’s post-adoption services (PAS). This included commissioning an independent specialist assessment, which found C likely needed sensory integration therapy subject to further assessment. PAS could not fund this from a Government Adoption Support Fund (ASF). But that did not remove the onus on the Council to fund a specialist assessment to see if C needed this therapy;
• that since January 2022 the Council had agreed Mrs B needed respite support but had not provided this. It adopted the wrong approach as it said Mrs B could not receive direct payments. The IO found she had a right to receive direct payments;
• that the Council had some awareness of FASD.

30. In its response, sent in October 2023, the Council’s adjudication officer accepted all the IO’s findings. They provided:

• an apology to Mrs B for any “upset, inconvenience and negative impact that this process has had upon you and your family”. The Council offered Mrs B a payment of £250 for delay in the complaint procedure;
• that it would consider a need for Mrs B to receive direct payments to buy respite care as part of a new children and families care assessment it had begun undertaking. It would also issue new advice to staff to avoid it taking the wrong approach in future;
• that this assessment would also consider if C would benefit from the further specialist assessment to decide if they needed sensory integration therapy.

31. In November 2023, Mrs B escalated her complaint to stage three of the statutory complaint procedure. Among her grounds of complaint were that:

• she wanted more resolution to her complaint about a lack of respite care; she said it was now two years since she last received this;
• that by now she had paid privately for an assessment which established C needed sensory integration therapy. The Council should therefore provide this, although she added the assessment found C needed to be in a different education setting to benefit from this;
• that C’s case should sit with the Council’s children with disabilities team; that its criteria did not include children who were neurodiverse or had FASD.

32. The Stage 3 Panel supported the earlier findings made by the IO and did not find the Council further at fault. But it did make some more recommendations. These included that the Council should “explore options for services and support relevant to the needs of both [Mrs B and C]”.
33. In its final response to Mrs B in February 2024, the Council said that:

• it had now set up direct payments that Mrs B could use for C to “engage in support services to meet [their] needs”; that C’s case would pass to its Children Family & Wellbeing Service;
• that it had sent the SEND service a copy of the most recent children and family needs assessment.

Other relevant information

34. As part of my investigation, I also took account of the following facts I considered relevant.
35. That between April 2021 and April 2022, C received support via the Council’s adolescent support unit (ASU). This undertook some direct work with C and, until January 2022 provided some overnight respite care. After this time Mrs B received no respite care.
36. Until July 2022 C also received support through the Council’s PAS. This included it commissioning in 2021 of a multi-disciplinary assessment which proposed further therapeutic interventions of potential benefit to C. The Council declined these proposals saying the recommendations repeated what it had provided to C and their family before.
37. In addition, in 2022 PAS declined to provide sensory integration therapy for C. It said it could only consider funding for this from the ASF if there was a confirmed need. At that time there was no confirmed need, with the assessment recommending further specialist assessment, which the ASF could not fund.
38. In November 2022 the Council completed a children and family assessment. This said the Council would continue to support C as a ‘child in need’ under Section 17 of the Children’s Act. It said the Council would:

• re-refer C’s case to PAS;
• refer to a specific named support service for family therapy;
• refer to another specific named service supporting children and families with ADHD;
• refer Mrs B to ‘Breaktime’ to provide some respite; and
• provide “education support re: the EHC Plan”.

39. The Breaktime service referred to in paragraph 38 provides access for children and young people with special educational needs to various activities and groups run by third party organisations. Every eligible child or young person can access up to 78 hours of activities each year.
40. In June 2023, C received an updated EHC Plan. This included, in Section H1 a list of social care services they would receive. The Council said it would:

• refer C’s case to PAS and a charity that provides family therapy;
• refer C’s case to another charity that would support C “in an intensive fashion for a two-year period” and “would typically provide 30 hours of direct work with the young person and their parents”;
• give Mrs B access to the Breaktime service and ‘Breaktime plus’ which would provide an extra eight hours a week support during term time and 15 hours a week during holidays;
• provide an “overnight short breaks option”; and
• give direct payments to enable Mrs B to commission a support service to provide support for up to 8 hours a week during term time & 15 hours a week during school holidays. The Council said it would also help with “managing employment, financial procedures and to assist with recruitment”.

41. In December 2023 the Council completed another children and family needs assessment. This identified that C took part in risk taking behaviours at home. It listed examples of behaviours witnessed by the social worker in the home environment and contrasted this with C’s behaviours at school. The social worker commented that C was “one of the most challenging young people I have met, in terms of persistent and risky behaviours towards parents”. Also, that their “adverse behaviours are becoming more severe in terms of language used, particularly towards [Mrs B]” and there had been a number of instances where “these incidents have progressed to become physical”. The social worker also commented that C’s adoption was “close to breakdown” because of the concerns about their behaviour and pressures on Mrs B.
42. The assessment noted C had accessed the ASU and completed a package of outreach support. The Council had also supported Mrs B to “access holiday activity fund and Lancashire Break Time”. The assessment said C would benefit from:

• further support as respite from the family home and an opportunity to engage with peers in activities; it said the family needed “specialist service provision accessed through direct payments”;
• Mr and Mrs B re-engaging “in post adoption support to explore further adoption support fund opportunities in terms of therapeutic support for C”. But this would not be sensory integration therapy given C’s education setting;
• that C’s case should sit with the child and family well-being service as they no longer needed services as a child in need.

43. A manager agreed the assessment, saying C’s case would pass to its child and family well-being service once the Council had put direct payments in place. The Council says by February 2024 it had authority to put the direct payments into effect.
44. The Council told me after this time, that its child and family well-being service:

• referred C for some online safety work;
• played some part in enrolling C to join a youth organisation;
• signposted C to various youth groups (which it understood they did not attend);
• provided information about a charity C previously attended that could provide activities;
• referred C’s case to a specialist mental health service.

45. In April 2024 the SEND Tribunal heard an appeal brought by Mrs B into the content of C’s EHC Plan. Part of the appeal centred on Mrs B wanting C to attend a specialist school where they could receive sensory integration therapy. The Tribunal rejected that part of the appeal.
46. In its decision, the SEND tribunal noted there were proposed amendments to Section H of the EHC Plan “not agreed by the parties”. However, because the grounds of appeal did not include an appeal to the content of Section H, the Tribunal said “they were left as they are” in a working document version of the Plan.
47. The working document (April 2024) deletes some of the support identified to C in the June 2023 version of the EHC Plan. Specifically, those sections referring C to various charities, one of which Mrs B said C could not access as it did not provide services in Lancashire. But the working document included the Council continuing to offer support through Breaktime, Breaktime plus and direct payments.
48. In May 2024 the Council transferred C’s case to it extra-familial harm team. Mrs B told us that direct payments were still not in place. Although in a later contact in June 2024 Mrs B told us they were now in payment. Mrs B said the delay in payment meant she could not use an identified foster carer to support her in providing respite care. Due to C’s needs, Mrs B said this was the only person she had identified at the time, who could provide respite.
49. In May 2024 C received an updated EHC Plan following the SEND Tribunal findings. This continued to list the social care support C would receive in identical terms to the version issued in June 2023 (i.e., not as written in the working document).
50. At the same time a representative acting for Mrs B in connection with C’s special educational needs received advice that Mrs B could not use the ‘Breaktime’ service. The Council told the representative this was because Mrs B now had direct payments in place and she could not have both.

My findings

51. The first issue I considered was Mrs B’s complaint that C’s case had never been open to the Council’s children with disabilities service. I noted neither the IO or review panel, at stages 2 and 3 of the statutory complaint procedure upheld this complaint. But I found no explanation to say why this was. I also could not find where the Council had explained its reasons to Mrs B, something it recognised in reply to my enquires that it failed to provide.
52. So, I went on to consider the criteria for this service. But I did not find C’s case met those. The service supports those children with severe or profound learning disabilities; complex health needs; severe or profound physical disabilities and severe sensory impairments. Undoubtedly C has significant and complex needs, but I did not consider the Council at fault for not finding they fell within any of those specific groups.
53. Further, the service provided more detailed criteria considering areas such as a child or young person’s fine motor skills, personal care needs and learning. C has some needs in these areas. But I could not find the Council at fault for saying they did not meet the description of each provided. For example, Mrs B said C has difficulty writing and drawing but the ‘fine motor’ criteria for the service is that a child must be “mostly unable to use hands”.
54. I understood Mrs B considered the service criteria too narrow. That, as a result, children or young people who are neurodiverse or with FASD could not use it. However, I did not find there was anything in the criteria that would exclude such children. Because access to the service does not depend on a specific diagnosis, but how this affects the child or young person and what needs it results in.
55. The next issue I considered was why C’s case was not open to the Council’s PAS and had not been since July 2022.
56. I noted that since PAS closed its service to C, the Council had, on three separate occasions, said it would refer their case back to it. First in its November 2022 assessment. Second, in C’s EHC Plan published June 2023. Third, in its December 2023 assessment.
57. Despite this, during my investigation, the service suggested it had not changed its position that there was no more support it could provide to Mrs B, C or their family.
58. This showed two significant failings of communication by the Council. First, I could not understand why its social workers repeatedly recommended this action if they knew this (or should have known it). Because this raised Mrs B’s expectations.
59. Second, I could not see what consideration or explanation the Council gave Mrs B for why C’s case remained closed to PAS, despite these consistent recommendations.
60. The communication failings were a fault.
61. They caused Mrs B injustice as distress. Because consistent recommendations for engagement with that service had not resulted in that engagement.
62. However, I could not say PAS needed to provide services to Mrs B or C. I noted here that through her complaint made via the statutory complaint procedure, Mrs B had consistently expressed her view C needed sensory integration therapy. I noted the Stage 2 findings, supported by the Stage 3 panel found the Council should provide this. While PAS did not have to be the service commissioning it, the initial discussion had gone through that service. So, I considered if I could recommend PAS provide that.
63. But I could not endorse this specific finding and place that expectation on PAS or any other Council service. Unfortunately, the complaint procedure in this case had operated apart from Mrs B’s appeal to the SEND Tribunal. In both, Mrs B’s raised a request for this therapy.
64. Mrs B wanted the SEND Tribunal to amend C’s EHC Plan to name a specialist school. Part of her case was the calmer environment of a specialist school would allow C to receive this therapy. The SEND Tribunal rejected that argument and decided C’s EHC Plan should continue to name their current mainstream school. I could not re-examine or overturn that decision, given the law prevents us re-visiting an appeal heard by a Tribunal.
65. This did not mean there could be no services C could receive through PAS. I retained an open mind on that point. But I considered it mattered less that C received support through one particular service area, than that they and Mrs B received the services they needed from the Council as a corporate body.
66. This led me in turn to consider how the Council carried out some of the other recommendations made following Mrs B taking her complaint through the complaint procedure.
67. I found the Council had consistently failed on another undertaking given both in response to Mrs B’s complaint and other documents I have referred to.
68. In June 2023 the Council committed to providing Mrs B with direct payments in C’s EHC Plan. It repeated that commitment in response to her complaint when the IO said it should ‘urgently’ take action to do so. The IO said this noting Mrs B had been without respite care since January 2022.
69. But the Council did not do so for another ten months. The Council wanted to complete another assessment of C’s needs first. But it did not need to do this given C’s EHC Plan, barely three months old, already committed it to make direct payments. I also noted that even after the assessment completed, the Council took several months to put the payments into place.
70. Consequently, Mrs B was without the means to obtain respite for two and a half years, despite the evidence showing how many demands parenting C placed on her, given their complex needs. This was a significant injustice.
71. I recognised the intent behind direct payments is to give parents and those using services more control over what services they receive. But I was concerned that in this case, this had come at the expense of specificity. It was unclear to me the scope of what Mrs B and C needed and therefore what the direct payments should be spent on.
72. This resulted from the December 2023 assessment of C’s needs. This was detailed and well researched and provided a comprehensive picture of a complex young person. But it had vague outcomes, referring to an unidentified “specialist service provision” while also referring C to PAS, a service closed to them. Unfortunately, the Stage 3 panel was not more specific in its later recommendation the Council should “explore options for services and support”.
73. I considered this lack of specificity contributes to an ongoing lack of clarity on what support Mrs B and C need. That was a fault, causing an ongoing injustice in the form of uncertainty, which we consider distress.
74. Finally, during this investigation, Mrs B explained how she missed out earlier this year on access to a foster care respite placement because no direct payments were in payment. And then bought to my attention the advice she received that she could not access both Breaktime activities and receive direct payments. This is not something the Council makes clear on its website. It would also appear to run contrary to the past commitments given to Mrs B in C’s EHC plan and in response to this complaint.
75. I considered part of remedying Mrs B’s injustice therefore had to include requiring the Council to look again at what specific services it might provide to C or help her to access using direct payments. I remain neutral about which specific service area C’s case should be open to. But I cannot be neutral in expecting the Council to remedy its consistent failure to support Mrs B when she has asked persistently for its help and it has failed to keep to its commitments. It is clear she is struggling, and has struggled for a long time now, in meeting the needs of C. The Council’s December 2023 assessment contains all the evidence it needs for why this is. I consider both Mrs B and C are at risk of harm for so long as support services are not in place, which is a further injustice. A finding also reinforced by recent information made known to me by Mrs B. This fell outside the scope of this investigation, but I invited the Council to keep it in mind when responding to my recommendations, which it has agreed to.

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Agreed action

Personal Remedy

76. The Council has accepted my findings above. To remedy the injustice caused to Mrs B, it has agreed that within 20 working days of this decision it will:
1. provide her with an apology taking account of the published guidance at Section 3.2 of our guidance on remedies: Guidance on remedies - Local Government and Social Care Ombudsman
2. make a symbolic payment to her of £1000 in recognition of the prolonged distress and loss of service she experienced (this is in addition to the £250 the Council offered her earlier in the complaint procedure which it should also offer again if Mrs B did not accept this. This was because the Council made that earlier offer in recognition of a different matter; a delay in the complaint procedure);
3. offer a meeting with Mrs B to review all possible options for support for C (see paragraph 77 below) to be held and with outcomes communicated, within 40 working days of this decision.
77. The meeting recommended at paragraph 76c) above should result in clear outcomes recording:

• what service C’s case will remain open to;
• what support services C and Mrs B might access, including therapeutic support, which have either been tried and found to work, or not previously tried to help address C’s challenging behaviours and the impact these are having on their own wellbeing and that of Mrs B and the remainder of the family;
• what respite options Mrs B has available including overnight care; as a minimum the Council needs to clarify she has access to both the Breaktime service and direct payments as first promised in June 2023; it should also consider if Mrs B wants to continue to receive direct payments as she has indicated she may now prefer the Council to commission respite given difficulties she encounters in identifying suitable respite;
• how any support services or respite will be paid for;
• how these outcomes can be reflected in an updated EHC Plan for C.

Service improvements

78. The Council has also agreed the following service improvements to try and prevent a repeat of the fault identified in this investigation. Within three months it will:
1. review how its children’s social workers and post adoption services liaise and communicate and consider how this can be improved to avoid a situation where users are referred to post adoption services but then fail to receive any service. It should provide us with details of its findings and any action taken, or that it proposes to take, following the review;
2. it should brief all relevant staff who advise on, or administer, Breaktime support or direct payments (in writing or in person) on what impact (if any) receiving direct payments has, on the availability of Breaktime support. It should also review its website contents if direct payment eligibility has an impact on the availability of this service, to make that clear.
79. The Council will provide us with evidence it has complied with the above actions.

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Final decision

80. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mrs B and C. The Council accepted these findings and agreed action to remedy that injustice and make service improvements. Consequently, I completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman