Summary: The Council failed to consider a Tribunal recommendation about social care provision within the required timescale; failed to put care support in place; delayed investigating the complaint, and when it did investigate, failed to consider a financial remedy for missed provision. As a result, Ms X and her family went without support and were caused unnecessary time and trouble. The Council will apologise, make a symbolic payment for missed provision and distress, and carry out service improvements. The complaint is upheld.

The complaint

1. Ms X complains the Council:
• failed to consider a Tribunal recommendation about social care provision within the required timescale;
• failed to put the recommended care support in place;
• delayed investigating her complaint; and
• when it did investigate, it failed to ‘compensate’ the family for missed provision.
2. Ms X says as a result the family went without a care package for many months which has caused additional stress and loss of support.

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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. 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)
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. 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 Council’s actions in relation to social care needs and provision from Autumn 2023.
8. I have not investigated the Council’s handling of the Education, Health and Care Plan in relation to special educational needs. Ms X has resolved these matters via the Council’s local complaint process.

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How I considered this complaint

9. I have considered information provided by Ms X and the Council including the complaint correspondence and Tribunal order.
10. I have considered relevant law and guidance including:
• The Children Act 1989
• The Children and Families Act 2014
• The Special Educational Needs and Disability (SEND) Regulations 2014
• The SEND (First Tier Tribunal Recommendations Power) Regulations 2017.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received 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

Child in need

13. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
14. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

15. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. Where a referral is accepted under section 17 the council should lead a multi-agency assessment and compete it within 45 working days. Where the council’s children’s social care decides to provide services, it should develop a multiagency child in need plan which sets out which organisations and agencies will provide which services to the child and family. (Working Together to Safeguard Children) 
16. 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. We also published practitioner guidance on the procedures, setting out our expectations.

EHC Plans

17. 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 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. 

18. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council.

19. 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.  

20. 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. 

Parent carers

21. 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.

SEND Tribunal

22. The SEND (First Tier Tribunal Recommendations Power) Regulations 2017 says that when the SEND Tribunal makes a recommendation in respect of social care needs or social care provision the Council must respond to the child’s parent or the young person within five weeks beginning with the date of the recommendation.
23. The response must
• be in writing,
• state what steps, if any, the Council has decided to take following its consideration of the recommendation, and
• give reasons for any decision not to follow the recommendation, or any part of it.

What happened

24. A social care assessment of Ms X’s child, who is disabled and has special educational needs, was carried out in 2022 by the Council area Ms X lived in at that time. The outcome of the assessment was a referral to Early Help services.
25. Ms X appealed her child’s EHC Plan to the SEND Tribunal in 2022/23. The appeal was an extended appeal that included the description of social care needs and provision in the EHC Plan.
26. Ms X moved authorities in Spring 2023. The EHC Plan and appeal was taken over by the new Council.
27. The SEND Tribunal decided the appeal in early Autumn 2023. It ordered changes to the education sections of the EHC Plan. It made a recommendation under its extended powers that wording provided in an independent social worker report obtained by the family be included in the EHC Plan. The effect of this was a recommendation that social care short break / respite provision be provided to the family and included in Section H1. The recommendation was for eight hours support per week in termtime and twelve hours in school holidays.
28. The Council had to decide whether to accept the recommendation of the Tribunal within five weeks (SEND (First Tier Tribunal Recommendations Power) Regulations 2017). It also had to issue the amended Plan within five weeks of the Tribunal order.
29. The Council failed to amend the Plan within the required timescale. Ms X used solicitors to chase the Council. A final amended Plan was issued at the end of 2023. This did not include the recommended social care provision. The Council also failed to provide a written response to Ms X about whether it accepted the recommendation.
30. The Plan was further amended and reissued two months later to include the name of the setting Ms X’s child would attend from Autumn 2024. Again, the recommended social care provision was not included.
31. Five months after the Tribunal hearing the Council’s children social care team carried out a child and family assessment under s.17 Children Act 1989. The team put the date of referral as February 2024, not Spring 2023 when Ms X moved into the area and the Council’s SEN team was aware that social care was an issue in the appeal.
32. The assessment was completed within a few weeks and identified a need for six hours care support per week in termtime, twelve hours per week in holidays and two overnight short breaks per month.
33. Ms X says direct payments for this level of support were subsequently approved but the funds not made available to her until May 2024, eight months after the Tribunal decision.
34. Ms X complained to the Council in early 2024 about matters including delay in identifying a school, communication problems and concerns about the Council’s handling of the appeal process. The Council provided a stage one complaint response at the start of 2024 acknowledging several actions were not completed after receipt of the Tribunal order in the Autumn. The Council also acknowledged the special educational needs (SEN) team had not notified children’s social care either when Ms X moved into the area and social care was a live issue in the appeal, or when the Council received the Tribunal recommendation. The Council offered to expedite an assessment and upheld Ms X's complaint about delay.
35. The Council originally offered a symbolic payment of £1000 for delays in SEN and social care matters. After further communication with Ms X, it increased this to provide a sum for lost education, lost therapy, ‘distress caused through the poor handling of the Tribunal’ and a time and trouble payment for lack of communication and the need to escalate the matter to managers.
36. As social care provision recommended by the Tribunal was not in place, Ms X made a separate complaint about the missed provision. Initially the Council rejected this as being included in her SEN complaint, but it then changed its mind and accepted it as a separate stage one social care complaint.
37. The Council provided a stage one response to the social care complaint in Spring 2024. The Council acknowledged fault but said the fault lay with the SEN team and social care was not aware of Ms X’s child until early 2024. Social care had expedited the assessment, but due to staffing issues the direct payment had been delayed.
38. Ms X asked for her social care complaint to go to stage two as she did not accept the explanation why social care did not know about her child for a year. Ms X said she did not understand why another assessment was needed when the Tribunal had accepted the recommendations of the independent social worker in Autumn 2023. Ms X wanted the provision accepted by the Tribunal added to the Plan and implemented. Ms X said eight months had passed since the Tribunal decision.
39. There was some delay following Ms X escalating the complaint to stage two, during which time she brought her complaint to the Ombudsman.
40. The Council provided a stage two response in Autumn 2024. It acknowledged delay in complaint handling but also said the complaint should not have been accepted at stage one as the original fault lay with the SEN team in not making the referral and this was covered by the SEN complaint response provided in early 2024. The Council acknowledged that this error had led to further delay. The Council said the original payment in relation to the SEN complaint included the SEN team’s fault in relation to social care and as Ms X had accepted this payment the Council considered the complaint was resolved at that time.

Analysis

41. The Tribunal decision about social care needs and provision was not an order and was not legally binding, however the Ombudsman’s view is that Tribunal recommendations should be implemented unless a Council can show there is a good reason not to.
42. The Council failed to consider the Tribunal recommendation for social care provision within five weeks of the Tribunal decision. This is fault. It should have sent Ms X a written decision about its view on the recommendation and an amended EHC Plan by the end of October 2023.
43. If the Council wished to carry out its own assessment to check whether it could agree the recommendations, it should have done so no later than five weeks after the Tribunal decision. In practice the Council had been on notice for many months previously that this was a ‘live’ issue and will have received the independent social worker report ahead of the hearing.
44. I find there was a 6.5 month delay in completing the assessment and providing the direct payments. I have taken the period of delay from the end of the five weeks and when direct payments should have been in place, not from the date of the decision.
45. I find the SEN complaint and symbolic payment acknowledged the delay in referring Ms X’s child to social care, but did not include any payment for missed social care provision. I consider it was acceptable for the Council to have included this matter in its corporate SEN complaint rather than open a separate children’s social care complaint, but it should have been clear about which process it intended to use from the start. I find the Council should have left open the matter of a remedy for missed care support if, either social care went on to accept the Tribunal recommendation or made its own finding support was required.
46. I find there is an unremedied injustice in that Ms X’s child and the family missed out on social care support for 6.5 months because of the Council’s delay.
47. I cannot say the Council had to accept the number of hours the Tribunal recommended. It was entitled to form its own view. The fault was in taking several months to do so, and a further delay putting the provision in place.
48. I find that ‘but for’ the fault the Council is likely to have reached the same view and therefore on the balance of probabilities the provision missed was six hours per week in termtime, twelve hours per week in holidays and two overnights per month from November 2023 to May 2024 (6.5 months).

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Agreed action

49. The Council will apologise to Ms X for the fault identified in this decision statement.
50. The Council will pay Ms X on behalf of her family a symbolic payment to acknowledge the missed respite / social care provision of £2350 (based on £50 per week missed termtime provision, £50 per missed overnight and £100 per week holiday provision over 6.5 months).
51. The Council will pay Ms X £150 for her time and trouble and distress including due to poor complaint handling.

Within two months of my final decision:

52. The Council will ensure it has robust processes in place to:
• Consult social care as part of EHC needs assessments, reviews and appeals.
• Follow up Tribunal decisions, including recommendations, within required timescales.
• Investigate EHC Plan complaints that encompass social care and education matters.
53. The Council will provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation. The Council failed to consider a Tribunal recommendation about social care provision within the required timescale; failed to put the recommended care support in place; delayed investigating the complaint and when it did investigate, failed to consider a financial remedy for missed provision. As a result, Ms X and her family went without support and were caused unnecessary time and trouble. I am satisfied the agreed actions set out above are a suitable remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman