Summary: The complainants alleged that the Council failed to care properly for their son when he was in its care. The Council has carried out an independent investigation and has accepted the findings of fault made. We accept those findings, and the findings of no fault, and we do not consider that we can add to the investigation already carried out. However, the Council has agreed to remedy the injustice caused by the faults in the way we recommended. We have therefore completed our investigation and are closing the complaint.

The complaint

1. The complainants, who I refer to as Mr and Mrs X, complained about the post 16 accommodation and services provided to their teenage son (B) when in the care of the Council. They say the Council failed to protect him and ensure his best interests were met and that the Council’s poor services to B has caused avoidable distress to them, and adversely affected B’s well-being and independence pathway.
2. Mr and Mrs X’s complaint was considered under the statutory Children Act 1989 three stage complaints procedure. They say that they brought their complaint to the Ombudsman because they were concerned that the recommendations and learning from the statutory investigation had not been implemented.

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What I have investigated

3. I investigated the Council’s actions since May 2021 in respect of the implementation of the recommended actions made under the statutory complaints’ procedure.
4. However, during this investigation, Mr and Mrs X raised concerns about the Council’s actions over and above the implementation of the complaints’ recommendations concerning B’s education while in care. I agreed to add this to my investigation.
5. Matters, which I have not investigated, are set out in the last paragraph of this statement.

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The Ombudsman’s role and powers

6. 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)

7. The Ombudsman can also consider complaints of a service failure. The Ombudsman’s view, based on caselaw (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407), is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved.
8. We may conclude that service failure has occurred, causing an injustice, in the absence of any specific fault in the council’s policy or procedure. This might be the case where there is an absence of key staff or the inability to recruit key staff or market forces prevent a statutory duty being delivered.
9. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused.
10. We cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
11. SEND is a Tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
12. If we are satisfied with a council’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)
13. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

14. I wrote to Mr and Mrs X setting out the limited remit of my investigation, (for reasons explained below), which the complainants agreed to.
15. I made enquiries of the Council and further enquiries after Mr and Mrs X commented on what the Council had said and raised additional concerns regarding B’s education. I have spoken to Mr X on the telephone.
16. Normally the Ombudsman will not reinvestigate if we are satisfied that the key complaints have been considered by the statutory independent investigation. If so, we would then check to see if there has been a suitable remedy for the injustice caused by any faults. We will also look to see if recommended actions have been carried out.

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What I found

17. A child with special educational needs (SEN) 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.
18. The council has a duty to secure the provision in an EHC plan (Section 42 Children and Families Act 2014). The courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
19. We recognise it is not practical for councils to keep a close eye on whether schools/providers are providing all the special educational provision for every pupil with an EHC plan. However, councils should show care in discharging the duty to arrange SEN provision and should investigate any complaints or concerns that provision is not in place.
20. There should be a review within 12 months of issuing a plan and then within 12 months of any previous review. (SEN Code paragraph 9.168)
21. A council can delegate the arranging and holding of the review to a school or college. But councils must make sure these reviews take place. The council and school or college must co-operate to ensure a review takes place.
22. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
23. The SEN Code of Practice states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
24. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
25. Where a young person with an EHC Plan moves into another council area, the responsibility for the EHC Plan passes to the new council.

Children in care

26. Section 20 of the Children Act 1989 says councils shall provide accommodation to any child in need within their area who, among other things, needs it, because:
• the person who has been caring for them being prevented from providing suitable accommodation or care.
27. Councils cannot accommodate a child under section 20 if a person holding parental responsibility objects and is willing and able to care for the child or arrange care for the child. Parents can remove their child from a placement.
28. All children who are in care of the council must be appointed an Independent Reviewing Officer (IRO). The IROs’ Handbook 2011 sets out their duties to safeguard and promote a child’s best interests and monitor a council’s actions. IROs are qualified and experienced social workers.
29. There should be a care plan for the child, which is regularly reviewed every six months or earlier, if necessary, at a statutory looked after child review. The statutory guidance states that significant changes to the child’s plans may only be made or proposed at the child’s review. The IRO has the authority to determine when a review should be convened in the light of a change of circumstances.
30. Social workers should visit the young person every six weeks.
31. Councils should promote the educational achievement of children in care, and they should have a Personal Education Plan (PEP).

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What I found

Background information

32. B has autism (ASD) and other related mental health difficulties. He remained at home until the summer of 2018 when he came into care because of his serious self-harm and aggression in the family home. He was placed in residential care. He was asked to leave the placement in early 2020 because staff could not manage his behaviour.
33. B had five 16 plus residential placements between 2020 and 2022. In early 2022, he became the responsibility of Adult Social Care and the Adult Community Mental Health Team.
34. The Council explains that B’s placements had to be found at short notice and were ‘spot purchase’ placements. Checks were carried out by the Council’s Placement Team and included seeking references from other councils and evidence of safer recruitment process, insurance documents and statement of purpose and other relevant policies.
35. Once a young person is placed at a 16 plus placements, the Council says that the social worker and IRO play an important role in the ongoing monitoring.
36. The Council says that there are examples of intervention and direct work with placements where B was placed, including:

• the Advanced Practitioner visiting the placement and making recommendations to the provider;
• seeking a more specialist placement via its multi-agency panel;
• putting in additional staff to support B’s placement (3 to 1 ratio);
• making a deprivation of liberty application to the court (which allows a person’s movements to be restricted) to safeguard B; and
• moving B to an annex in 2022 to encourage independent living.

37. The Council says that, in addition to B’s challenging behaviours, each time he moved, a different health Trust was involved and this created difficulties in co‑ordinating care and in the continuity of care. The Council says that there is evidence in its files of the complexity of need and interventions required.
38. In respect of B’s education, the constant change of placements caused similar problems and it meant that the new council (which had to take on responsibility for the delivery of B’s EHC plan) did not have sufficient time to consider B’s EHC plan before he moved again. Because of this, the Council decided to retain responsibility for B’s EHC plan in April 2021.
39. Mr and Mrs X say that they asked the Council to do this before April 2021 and that other SEN support was not provided, like social activities, cooking lessons, a mentor, staff experienced with ASD pupils and small classrooms.
40. The Council says that, when it had responsibility for B’s EHC plan, it is satisfied that B received appropriate offers of one-to-one tuition but, at times, he would not engage. B started part-time employment during his late teenage years with an information technology firm, and this played to his strengths. Mr X told me that it was thought B might remain with this firm and his EHC plan would lapse.
41. In late 2021, the responsibility for B’s EHC plan was transferred to the new council area where B is now living.

The Council’s investigation of Mr and Mrs X’s complaints

42. There was a detailed stage two report in late 2020 and a stage three Complaint Review Panel hearing held in mid 2021.
43. There has been a full and detailed investigation into the complaints under the statutory complaints’ procedures. None of the complaint findings were reviewed by the Complaint Review Panel because the complainants said that they wished to concentrate on the recommendations arising from the investigation.

Summary of complaints

44. At the time that the stage two report was written, B was placed in a 16 plus semi‑independent accommodation under section 20, provided by an agency, Agency Y. Mr and Mrs X retained parental responsibility. Although B has spent time in a psychiatric adolescent hospital, he has never been formally detained and therefore entitled to statutory aftercare under s117 of the Mental Health Act. Accordingly, the responsibility for B’s care has rested with the Council and with Mr and Mrs X, although the Child and Adolescent Mental Health Services (CAMHS) has been involved.
45. It seems that at the time of B’s placement with Agency Y, Mr and Mrs X were unaware that this was an unregulated placement. They have since learnt this and were surprised. They are now aware that the use of unregulated placements for 16 plus looked after children has been an issue which the Government has considered. It is likely that standards for such accommodation will be implemented in 2023, with Ofsted having some monitoring responsibility.
46. Before B became eighteen, he was working 16 hours per week with a computer firm and was doing well.

Complaint One

47. This was divided into three aspects: (a) that there was a failure to keep Mr and Mrs X informed of key events (Partially Upheld); (b) that B was not supported sufficiently in his placement (Upheld); (c) that his placement was not sufficiently monitored (Not Upheld) on the basis that it was an unregulated placement.
48. However, at adjudication, complaint (b) was Not Upheld.

Complaint Two

49. That there was a lack of risk assessments, care plans and room searches at B’s placement (Upheld) on the basis that, although it was unregulated accommodation, the Council as corporate parent had a duty to ensure B’s accommodation met the standards expected of a ‘reasonable parent’.

Complaint Three

50. That there was insufficient input from the Independent Reviewing Officer (IRO) (Not Upheld).

Complaint Four

51. That staff working with B at his placement with Agency Y were not suitably qualified. (Partially Upheld) on the basis that the stage two investigator considered the staff were adequately qualified, but there had been a missed opportunity for training which had been offered by the Council. However, it was recognised that this decision was made by the provider.

Complaint Five

52. That there was not a consistent staff group working with B (Upheld) while at the same time the stage two investigator recognised that this was an unrealistic expectation.

Complaint Six

53. That B’s EHC plan had not been reviewed for 20 months (Partially Upheld). The stage two investigator concluded that the delay in carrying out the review was twelve not twenty months and the independent investigator was satisfied that B had received appropriate tutoring under his EHC plan. When schools locked down in March 2020, this tutoring was online.

Complaint Seven

54. That the placement with Agency Y was unsuitable for B’s needs (Upheld) although the stage two investigator listed several mitigating factors.

Recommendations from the stage two investigation

55. The following was recommended:
• an apology;
• a communication protocol;
• appropriate checks to be carried out by the Council’s Placement team to ensure unregulated accommodation met high standards;
• provider of semi-independent accommodation to have an accessible complaints policy;
• B’s looked after child statutory reviews to ensure risk assessments and care plans are actioned, frequent patient passport (regarding hospital admissions) to be agreed, hospital discharge paperwork to be logged and shared with staff, and appropriate room searches to take place. In addition, statutory reviews should record who is responsible for carrying out an action with a timescale;
• placement and support issues to be considered at looked after reviews; and
• online education to continue to be provided.
56. These recommendations were endorsed by the stage three Panel. The Panel recognised that the past could not be revisited but it noted that there was now a communication protocol in place with an expectation that social workers responded to emails from the complainants within five working days, that the IRO be reminded of the escalation process when he considered the Council was not adhering to B’s care plan, that B received an apology for the break in his specialist ASD therapy, and that Mr and Mrs X took up the offer of a meeting with the Chief Officer for Children’s Services.
57. Subsequently, the Director of Children Services offered to meet Mr and Mrs X to discuss their complaint. But they preferred to refer the complaint to the Ombudsman.
58. Since September to December 2020, the Council says that Mrs X was invited to all statutory reviews, PEP meetings and CAMHS’ meetings. She also had regular meetings online with B’s social worker and manager. In addition, the social worker carried out statutory visits to B.
59. The Council says it has a Quality Assurance process for all 16 plus accommodation and, like some other councils, it has written to Ofsted stating this accommodation should be regulated. Mr and Mrs X say that they have not seen any evidence of this process. In addition, the Council requires its 16 plus providers to have an accessible complaints procedure and it also considers complaints about 16 plus services under the statutory complaint process, which has an independent element.
60. Mr and Mrs X say that they are dubious the recommendations have been carried out and that the Council has ensured the learning from their complaints. They also say an apology has not been made to B.

Findings

61. I am satisfied that there has been a detailed investigation into Mr and Mrs X’s complaints and, having considered the Council’s additional information, my view is that it is appropriate to accept the findings of fault already made in the statutory complaints process, but also the findings of no fault. I am also satisfied that, when the Council had responsibility for B’s education, efforts were made to provide this to him.
62. B has very complex needs and challenging, risky behaviours which has created difficulties for his parents and for staff looking after him. This has been compounded by the national difficulty for councils in finding suitable 16 plus accommodation.
63. Mr and Mrs X consider B has been passed from ‘pillar to post’ with different placements required at short notice. That has happened and in addition the statutory complaint process upheld Mr and Mrs X’s concerns that some placements were unsuitable, there was not a consistent work force and not all staff were sufficiently qualified or trained. This amounts to fault causing a personal injustice.
64. The stage two report listed various mitigating factors to explain why these faults had occurred, factors which affect many councils. Even if the faults were not solely because of actions by the Council, we would call it a service failure if the Council does not provide the services it is/was required to.
65. I agree with Mr and Mrs X that the IRO held an important role in ensuring the Council adhered to B’s care plan, and to his PEP and that, if the IRO had concerns, he could have escalated those to senior management. But the statutory investigation did not find the Council at fault, and I am satisfied that this was after careful consideration of all the information available.
66. My view is that, on the balance of probability, there will have been some avoidable distress, pain and frustration to Mr and Mrs X, and to B, by the faults identified. But it is too speculative to say what might have been different but for the faults.
67. Mr and Mrs X say that they are not seeking a monetary remedy for themselves. They just want to know that changes have been made to improve practice.
68. The Council says that it has learned from this complaint and has put in additional measures to try to avoid a recurrence of the faults in this case.

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Agreed actions

69. I find fault by the Council causing injustice to Mr and Mrs X, and to B, which the complaint process did not fully remedy.
70. The Ombudsman’s guidance on remedies makes the following points:
• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
• there must be a clear and direct link between the fault identified and the injustice to be remedied;
• distress can include uncertainty about how the outcome might have been different;

• where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases.

The faults identified by the statutory investigation are significant in that B’s complex needs were not always met and this would have caused injustice. However, I recognise that B’s behaviours were challenging, and that the Council struggled to find suitable placements. There were some mitigating factors in this case which the independent stage two investigator highlighted. I appreciate that this may be of little comfort to Mr and Mrs X because all they wanted was for B to be properly cared for and for there to be better communication between all the parties involved and consistency of care for B.

71. To remedy the injustice caused by the faults identified, I recommend that the Council, within six weeks of the final statement:

• sends a written apology to B for all the faults identified in the statutory investigation;
• makes a payment to remedy B’s injustice of £1,000 with Mr and Mrs X receiving this money on his behalf; and
• I had recommended, and the Council had agreed, to arrange a meeting for Mr and Mrs X with the Chief Officer for Children’s Services so that they could learn directly how the Council has learned from this complaint. But the complainants have decided not to take up this offer.

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Final decision

72. I find fault causing an injustice. The Council has agreed the actions to remedy this. I have therefore completed my investigation and am closing the complaint.

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Parts of the complaint that I did not investigate

73. Much of the time B spent in care, the responsibility for his EHC plan rested with other councils. Mr and Mrs X have not made complaints about these councils, so I have not investigated their actions.
74. Mr and Mrs X are concerned that the planning for B’s transition to adulthood has been poor and he has suffered as a result. This is a new complaint. While I appreciate it is time consuming for Mr and Mrs X, they need to make a fresh complaint to the Council.
75. The complainants remain concerned about the failure by the IRO to properly monitor B’s care. This is a complaint about the IRO’s professional practice. Mr and Mrs X can make a complaint about the IRO to Social Work England, the professional body which registers social workers and deals with complaints about poor practice.

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Investigator's decision on behalf of the Ombudsman