Summary: Mr X complained that the Council failed to respond to his requests to complete the social care sections of his son, B’s, Education Health and Care Plan. We find that the Council was not at fault. It repeatedly offered to carry out an assessment of B’s needs so that provision could be included in the Plan, but Mr X would not accept an assessment under the Council’s procedures. Mr X also complained that the Council refused to take his complaint to stage 2 of the complaints procedure. There were some minor flaws in the complaint handling but these were not so significant as to amount to fault.

The complaint

1. Mr X complained that
1. since December 2016 the Council has failed to respond to his repeated requests for the social care section of his son's Education Health and Care Plan to be completed, including on the following occasions:
• his email to Mr Q, Head of Service on 13 December 2016;
• his email to Mr Q in January 2017;
• the almost weekly requests from his son's school between 7 June and 15 December 2017;
• the request made at a meeting on 15 December 2017 at his son's school with Ms D, Special Educational Needs and Disability (SEND) Officer;
• repeated requests at least once a month from 15 December 2017 until 7 June 2018 to Ms D;
• his email of 19 August 2018 to Mr V, Complaints Officer;
• his email of 9 September 2018 to Mr V: and
1. The Council has refused to carry out a stage 2 investigation in response to the following requests to escalate his complaint:
• his email to Mr C, Head of SEND Service, on 8 July 2019;
• his email to Mr C on 22 July 2019;
• his email to Mr C on 11 August 2019.
2. As a result he says he has experienced distress, anxiety and frustration, his complaint has not been fully investigated and his son has not had all the financial support he should have received.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1) and 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

7. I discussed the complaint with Mr X and considered the information he provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and Council policy on support for children with special educational needs and disabilities. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments I received before making a final decision.
8. We decided to exercise discretion to investigate matters dating back to December 2016 because there appeared to have been some difficulties for Mr X in communicating with the Council. I have referred to earlier events as part of the background to the complaint.

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What I found

Social care support for children

9. Councils have a duty to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child’s needs. A disabled child is a ‘child in need’. (Children Act 1989, section 17)
10. Councils carry out an assessment of the child’s needs to decide what services to provide. I will refer to this as a ‘section 17’ or a ‘Child in Need’ assessment.
11. The Council offers two ways of carrying out assessments of children’s needs:
• An assessment under ‘Early Help’ by a Family Support Worker; or
• A full child and family assessment by a social worker for children with more complex needs
12. The Council offers the same options for social care assessments for children and young people with EHC Plans.
13. The Council also has a Short Breaks Service that offers parents short breaks from their caring responsibilities through support to take their child out for activities. The Council can offer this support up to the value of £1,000 a year without the need for an assessment. It may provide the support through direct payments to the parent carers, known as Early Help Individual Payments (EHIP). The short breaks are provided under section 2 of the Chronically Sick and Disabled Persons Act (CSDPA) 1970.

Education Health and Care Plans

14. A child with special educational needs may have an Education, Health and Care (EHC) Plan, following an assessment. The Plan 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 SEND Tribunal can do this.

15. The sections in an EHC Plan include:
     
• Section D - The social care needs related to the child’s SEN or disability
   
• Section F: The special educational provision the child needs
• Section H1: Any social care provision which must be made under section 2 of the CSDPA
• Section H2: Any other social care provision reasonably required because of the SEN.
16. As part of the EHC assessment councils must gather advice from relevant professionals. This includes:
• the child's education placement
• medical advice and information from health care professionals involved with the child
• social care advice and information, including any child in need assessments
• advice and information from any person requested by the parent or young person, where the council considers it reasonable
• any other advice and information the council considers appropriate, including Early Help assessments.

Background

17. Mr X has a son, B, now aged 16, who has Down’s syndrome. B has had an EHC Plan for several years. The Plan provides for special educational needs support in section F, such as extra help in the classroom and speech and language therapy. There are currently no social care needs identified in section D or any social care provision set out in sections H1 and H2.
18. In 2010, the Council assessed that B needed some social care support. It awarded direct payments for four hours support per week during term time and eight hours during school holidays.
19. In 2014 the Council changed its method of assessing children’s social care needs, introducing the two routes for assessing more and less complex cases. Mr X was not happy with the change and did not want to participate. He wanted the Council to carry out the assessment in the same way it had done in 2010. He made a complaint to the Council and then to the Ombudsman. The Ombudsman’s decision in January 2017 found the Council had not explained the change in its practice to Mr X properly. But we found the Council was not at fault in deciding it needed to carry out an assessment in order to determine what support was needed. We said it was for Mr X to decide whether to co-operate with any assessment offered under the Council’s procedures. The investigator also referred to including a social care assessment in the EHC Plan. However at that stage the sections on social care needs in the Plan had not been completed.
20. Mr X made another complaint to the Ombudsman in December 2016. This was about the Council’s decision to stop the direct payments as he had not agreed to an assessment. The Ombudsman’s decision in May 2017 was that the Council was not at fault. The Council could not make direct payments without assessing B’s needs and Mr X had failed to respond to the offer of an assessment.

Events from December 2016

Requests to complete the social care sections of the EHC Plan

21. There has been extensive contact between the Council and Mr X since December 2016. I will not cover every event here, but will focus on the specific issues raised in this complaint. Based on evidence from the Council and Mr X, I set out the following account of Mr X’s requests for the Council to complete the social care section of his son’s EHC Plan from December 2016 to 2019 and how the Council responded. I have looked at events up to 2019 because the complaint Mr X refers to deals with matters up to that point.
22. On 13 December 2016 Mr X wrote to Mr Q at the Council and asked for the social care section of B’s EHCP to be completed with a social worker as soon as possible.
23. Mr Q wrote to Mr X on 12 January 2017 following the Ombudsman’s decision confirming that Mr X now had a choice about the type of assessment he wanted to take part in or whether he wanted to access the EHIP payments without an assessment. Mr Q confirmed the Council could not make direct payments without an assessment of need. He invited Mr X to contact him to say how he wanted to proceed. Whether or not Mr Q referred to the particular emails Mr X had sent him, I am satisfied that the Council responded appropriately to his request.
24. Mr X wrote to Mr Q again on 3 March 2017 asking the Council to complete the care section of the EHC Plan and to make direct payments. On 23 March Mr Q wrote to Mr X to say he had been in contact with the Children with Disabilities Team and Mr X would hear from them about arranging an assessment.
25. The social worker allocated to the case contacted Mr X to offer to carry out the assessment. Mr X raised questions about the type of assessment needed. The social worker wrote to Mr X at the end of March confirming the different routes to an assessment, as previously explained, and the option of EHIP payments without an assessment. She explained that once the assessment was complete any support offered would be recorded in the relevant sections of B’s EHC Plan. She offered dates when she would be available to meet Mr and Mrs X to discuss the assessment and explain the process.
26. Mr X replied and then continued to write to the Council disputing the need for the type of assessment the Council said needed to happen. By early May Mr X had not agreed to the assessment and the Council closed the case.
27. It opened it again in late May 2017 when Mr X said he agreed to a child and family assessment. The Council wrote to him again offering dates for a home visit to discuss the assessment. Mr X responded with questions and disputes about various communications with the Council. The Council says he refused to agree to an initial meeting about the assessment unless the Council agreed to various pre-conditions. I have not seen any evidence that he agreed to a meeting.
28. In early June 2017 B’s school asked the Council’s SEND Team to update the EHC Plan including the care sections. The Council agreed to hold an Annual Review of the EHC Plan as this was overdue from Nov 2016. It said it would contact social care and health as part of the review. Ms D, the SEND Officer, contacted Children’s Social Care. However by early July Mr X had not consented to an assessment under the Council’s procedures and so it closed the social care case. As there was no assessment of B’s social care needs there was no information to include in the social care sections of the EHC Plan. I am satisfied Ms D took appropriate action. If Mr and Mrs X had agreed to an assessment the Council would have been able to include the outcome in the EHC Plan.
29. Mr X says B’s school contacted the Council nearly every month from June to December 2017 asking for a social care assessment but the Council took no action. I have not seen evidence of repeated requests from the school after June 2017. But even if the school did make such requests, Mr X had already failed to give his consent to an assessment and so it is likely the outcome would have been the same. Without an assessment of B’s social care needs the Council could not complete the relevant sections of the EHC Plan.
30. A meeting took place on 15 December 2017 with the SEND Team about completing the social care section of the EHC Plan. Mr X says at that meeting he and Mrs X made it clear to Ms D that they wanted social care needs included in the EHC Plan, but their request was ignored. Mr X says he continued contacting the Council every month up to June 2018 without getting a response. I have not seen evidence of what action Ms D took following the meeting in December 2017. The Council says Ms D has left the Council and it cannot find any further information about what she did. However it refers to its response to Mr X’s complaint which it sent him in May 2019. In order to provide the response the Council had spoken to Ms D and reviewed the available information. It said Ms D had taken reasonable steps but Mr and Mrs X had declined an assessment. She had also explained the alternative short breaks provision they could access. Again, based on Mr X’s previous approach, I cannot say even I do not have evidence of the steps Ms D took, this would have made a difference.
31. An Annual Review meeting took place in March 2018. The available evidence shows the meeting discussed amendments to the sections of the EHC Plan relating to B’s special educational needs and provision, but the sections relating to social care remained blank. The school has not provided any other record of the meeting to the Council. So I have not seen any evidence of a discussion about social care needs at the meeting.
32. In August 2018 the Council wrote to Mr X following a County Court hearing in which Mr X agreed to a new social care assessment. Mr X had made a claim against the Council for direct payments he had not received since 2016. The court eventually struck out the claim. The judge confirmed the Council could not make direct payments without having assessed B’s needs. The Council told Mr X it had referred B for a child in need assessment by the social work team. It also confirmed that once the assessment was complete, any support needs would be added in to B’s EHC Plan.
33. On 19 August Mr X wrote to Mr V, a Complaints Officer asking for the Council to complete the care section of B’s EHC Plan. Mr X says he did not receive a reply. But even if this is the case, the evidence I have seen shows the Council was in the process of dealing with the matter in any event following the court hearing.
34. In late August the social worker allocated to the case wrote to Mr X outlining the assessment process in detail and offering to arrange a meeting with him and Mrs X. Mr X responded with a long, detailed email raising questions about the type of assessment proposed. The Council replied and offered dates for a meeting. After further correspondence along similar lines during September and October 2018 the Council closed the case on 23 October as Mr X had not given consent to the assessment.
35. Mr X sent a follow-up email to Mr V on 9 September 2018 asking for a response to his previous email. Mr X says he did not receive a reply. However although this might have been frustrating for Mr X, I do not consider it affected the question of social care provision for his son. Mr X was in correspondence with the Council at this time leading to the result described in the previous paragraph.
36. In December the Council wrote to Mr X about some changes in the way the Council was dealing with EHC Plans. There was a review of B’s EHC Plan taking place in December but the process stalled because Mr X did not wish to discuss reviewing the Plan until the Council had resolved an issue he had about it providing a particular email.
37. The Council issued a draft amended EHC Plan in mid-April 2019. Mr X asked for section D to be completed and said he wanted to make a complaint about this. I deal with his complaint later in this statement.
38. At the beginning of May when an Annual Review meeting took place Mr and Mrs X ask for sections D, H1 and H2 to be completed.
39. As part of its response to Mr X’s complaint in mid-May 2019, the Council said it would take forward the review of the EHC Plan, issuing a proposed amended Plan for his comments before issuing the final Plan. It said if he wished to take up the offer of a social care assessment and this resulted in extra support, the details would be added in to B’s EHC Plan. The Council also provided information about the alternative route of EHIPs via the Short Breaks Team.
40. To date there has been no social care assessment and Mr and Mrs X have not applied for payments through the Short Breaks service. So there are no social care needs identified in section D and no social care provision included in sections H1 or H2 of B’s EHC Plan.

Complaint

41. Mr X made a formal complaint to the Council at the end of April 2019. The Council gave it a reference, which I will call ‘complaint 1’. The part of the complaint relevant to this investigation was the allegation that from June 2017 to June 2018 Ms D had failed to arrange for the care section of B’s EHC Plan to be completed. He said this was despite many requests from B’s school and at the meeting in December 2017.
42. The Council responded to the complaint on 17 May 2019, giving it an incorrect reference number, which I will refer to as ‘complaint 2’. However the content of the letter showed it was actually a response to ‘complaint 1’. The Council said Ms D had taken reasonable action following the meeting and also contacted the family to explain how to access the Short Breaks provision. She understood they had declined a social care assessment. The case had also been closed in October 2018 when they had not agreed to an assessment. The Council explained if they wanted to take up an assessment and if this resulted in any further social care provision, the EHC Plan would be amended. It offered a meeting with a SEND service manager if they wished to discuss the issues raised in the complaint.
43. Mr X replied to the Council with a history of his concerns dating back to 2015, accusing the Council of lying, asking for details of the law on which the Council’s decisions had been based, and asking to go to stage 2 of the complaints procedure.
44. The Council replied on 5 July, under reference ‘complaint 1’. It referred to the Council’s attempts in 2017 and 2018 to arrange a meeting to complete a new assessment and Mr X’s failure to agree. It confirmed the Council was “more than willing to undertake an assessment” of B, but this would not be exactly the same as in May 2010 as assessment procedures had changed. It gave contact details if Mr X wished to arrange an assessment under current procedures. It confirmed any assessment would be used to inform the social care section of the EHC Plan.
45. Mr X replied on 8 July asking the Council to take his complaint to stage 2. He said his complaint was solely about the Council’s refusal to arrange for the care section of the EHC Plan to be completed between 13 December 2016 and 9 September 2018. He said he wanted to go to stage 2 because the Council had failed to explain in its stage 1 response why it had failed to respond to his previous requests to complete the care section of the EHC Plan.
46. On 22 July Mr X chased the Council for a reply. Then on 11 August he wrote to the Council again about various matters, including referring to ‘three totally separate email subject headings’. The first was ‘complaint 1’, the second was about ‘the update of the EHC Plan’, and the third was another matter relating to communications with the Council. He asked the Council to confirm that his complaint about ‘update of the EHC Plan’ would now go forward to stage 2.
47. Around a week later Mr X wrote to the Council again referring to the ‘three totally different strands’ to his emails and asking for a stage 2 investigation of the complaint about ‘update of the EHC Plan’.
48. The Council responded on 19 August by confirming his complaint had gone to stage 2. There was then further correspondence during August and September about the complaints process.
49. Included in this correspondence was an email from the Head of Service with responsibility for children with disabilities setting out in detail the relevant law, policy and national guidance on assessments of children’s needs.
50. The Council sent Mr X a response headed ‘Stage 2 complaint’ on 5 September 2019. This did not give a reference number, but referred to receiving his complaint on 11 August. It covered a range of issues Mr X had raised in emails to the Council as part of his various complaints. Regarding the social care sections of the EHC Plan it noted Mr X had not agreed to a new social care assessment, and he had declined this in the past. It also noted he had said he would now request one and it would then progress the assessment and use the outcome to complete the social care section of the EHC Plan at the next review.

Analysis – was there fault causing injustice?

Complaint a) – requests to complete social care sections of the EHC Plan

51. Mr X complains that the Council failed to respond to his requests between December 2016 and 2019. The evidence shows this is not the case. The Council has explained to Mr X repeatedly that in order to complete the social care sections there needs to be an assessment to identify B’s social care needs and the provision needed to support them. The details would then be included in the EHC Plan. This is correct and applies to sections D and H2. The Council has also explained that the family could obtain support through the Short Breaks service. This would then appear in section H1.
52. The Council has offered to carry out the assessment several times but Mr X has never agreed to the terms on which it would be conducted. The issue is that Mr X believes the assessment should be in the same format as in 2010. However the Council’s procedures have changed since then and the Ombudsman has already found in a decision on a previous complaint that the Council is not at fault in following its policy and procedures. The same applies to this complaint relating to events from December 2016 to 2019.
53. I have not seen evidence that the Council replied specifically to all of the contacts Mr X listed in his complaint, as set out in paragraph 1a) above. In some cases I have seen the replies, in others I have not seen evidence of the contacts to the Council, and in others the Council did provide a response but did not say it was a reply to the particular email Mr X was referring to. I do not consider further investigation into this issue would be justified, however. This is because even in those instances where the Council may not have replied, in my view this did not cause significant injustice in the overall context of the Council’s attempts to engage with Mr X to carry out an assessment.
54. There does appear to have been some delay in reviewing B’s EHC Plan. Reviews should take place at least every 12 months. However I have not investigated this issue further as it was not part of the complaint. Also any delay would not have affected the key issue for Mr X, the completion of the social care sections of the Plan, because of his lack of co-operation with the process. The Council says it has re-structured its SEND service, increased staffing and provided more training. I hope this will ensure more timely reviews in future.

Complaint b) – requests to go to stage 2 of the complaints procedure

55. When Mr X asked to go to stage 2 of the complaints procedure on 8 July the Council did not reply until 19 August. This was after he had written to the Council twice to chase a response.
56. At that point the Council confirmed it had passed the complaint on for a stage 2 investigation. The Council’s stage 2 response of 5 September 2019 does not in my view fully address Mr X’s complaint. In his email of 8 July asking to go to stage 2 he said his complaint was solely about the Council’s refusal to arrange for the care section of the EHC Plan to be completed between 13 December 2016 and 9 September 2018. The Council’s stage 2 response refers to completion of the social care section of the EHC Plan. But it does not look at what happened from December 2016, or explain why the Council was not going to do so. Also it is not clear if this stage 2 response was intended as the response to ‘complaint 1’ as it did not include a reference number and previous correspondence which appeared to be about ‘complaint 1’ gave ‘complaint 2’ as the reference.
57. So there were some flaws in the way the Council responded to Mr X’s request to go to stage 2. However I can see from the records that it would have been difficult for the Council to disentangle the many issues Mr X raised in a large volume of correspondence and decide which ones should be attributed to each complaint. In that context I consider the fault was not significant and I do not consider it appropriate to recommend a remedy.

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Final decision

58. I have not found significant fault in the way the Council dealt with Mr X’s requests to complete the social care sections of B’s EHC Plan. The Council may not have replied to every item of correspondence from Mr X but I have not found this caused significant injustice. There were some flaws in the complaint handling but these were minor in the context of the difficulties of dealing with multiple overlapping complaints and correspondence from Mr X. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman