Summary: There was no fault in how the Council decided what support to provide to Mr and Mrs X’s child. The Council considered the relevant information when it made its decision. Nor was there any fault in how it considered school transport provision for Mr and Mrs X’s child. There was fault in how it then communicated the decision on what support it would provide, however the Council has already remedied any injustice to Mr and Mrs X, before our involvement.

The complaint

1. Mr and Mrs X complained the Council did not properly consider their child’s disabilities (G) when it assessed them for support.
2. Mr and Mrs X said G had a diagnosis of having an autistic spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD). Mr and Mrs X said the Council discriminated against G, when they said their support needs related to behavioural difficulties only.
3. They also complained the Council did not adequately assess the risks to G when it made decisions around school transport.
4. Mr and Mrs X said because the Council did not provide their family, in particular, G, with the correct support, they have suffered unnecessary distress and it has had an adverse impact on G’s wellbeing.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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)
8. 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 have investigated

9. Mr and Mrs X have had a significant amount of contact with the Council over a long period. Of those matters raised in their complaint to us, I have investigated the Council’s actions as follows:
• The Child in Need (CIN) assessment and actions between July and November 2022.
• The school transport risk assessment relating to the academic year September 2022 onwards.

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How I considered this complaint

10. I considered the information Mr and Mrs X provided.
11. I considered the Council’s comments and the documents it provided.
12. I considered the relevant law and guidance.
13. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

Duty to safeguard and promote welfare (section 17)

14. 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. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
15. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in section 2.

Assessment of need

16. The expectation of ‘Working Together’ is that an assessment which identifies significant needs will generally lead to the provision of services, but it not the case that there is a duty to meet every assessed need. Whether a service is required is dependent on the nature and extent of the need assessed and the consequences of not providing a service. Councils may use eligibility criteria and consider their available resources when providing services under section 17 of the Children Act.
17. If a council is satisfied it is ‘necessary’ to provide support services under section 2 of the CSDPA then services must be provided regardless of the council’s resources.
18. Assessments should take account of the needs of the whole family. While some services may be offered directly to the disabled child, services may also be offered under section 17 to parents or siblings.
19. The Courts have found (R (L and P) v Warwickshire CC, 2015) that not every disabled child will necessarily require a full assessment by a social worker. Those with lower-level needs may be assessed via Early Help. Councils should be able to demonstrate how they have determined the level of need.
20. A ‘child in need’ is defined under the Children Act 1989 as a child who is unlikely to achieve or maintain a reasonable level of health or development, or whose health and development is likely to be significantly or further impaired, without the provision of services; or a child who is disabled. Children in need may be assessed under section 17 of the Act. (Working together to safeguard children 2018)
21. Case law has established that, although the Children Act contains no explicit duty for local authorities to assess the needs of disabled children, “It is implicit in section 17(1) that a local authority will take reasonable steps to assess”. (R (G) v Barnet LBC (2003))

School Transport

22. The Council policy says where it provides free travel, it will provide this by the most cost-effective means. It also says unless there is a specific requirement for a child to travel alone, there may be others who will share the transport. The policy explains that passenger escorts may also be present.
23. The policy also says the Council will notify parents of the travel arrangements the Council believe are appropriate and if parents disagree, they can appeal this decision.

What happened

Child in Need assessment July-November 2022

24. In July 2022, a Special Educational Needs Tribunal told the Council to carry out a CIN assessment on G. In early August the Council recorded this as a new referral on a child and family assessment document.
25. In late August, the Council recorded it had started the assessment process. Against the assessment plan, the Council said it would need to;
• meet with Mr and Mrs X to get their view on support needs;
• speak to all the children at home, and;
• review the available information known about the family.
26. The Council met with Mr and Mrs X in late September to begin an initial assessment and obtain consent for it to share information with other agencies.
27. A social worker then met with Mr and Mrs X again and they then recorded their view on the support they believed was required for G. The social worker also recorded their observations and considerations about G, which included health, emotional and behavioural development. They also recorded that G had a diagnosis of having ASD and ADHD.
28. The social worker noted on the document that G had a disability which was developmental, but their view was they did not meet the criteria for support by the Council’s children with disabilities team because they did not have a physical disability or an illness alongside their ASD.
29. The social worker recorded Mr and Mrs X had had previous family support. They recommended it provide support to Mr and Mrs X and their family through support coordinated by their early help team. The document also shows they were aware Mr and Mrs X were asking for support by the children with disabilities team.
30. Mr and Mrs X sent us a voicemail message the social worker left on their mobile telephone in mid-October. The message says that the social worker had completed their assessment and they intended to send it to their manager to consider it. The social worker said they had decided G would be suitable for support under a CIN plan, in order to;
• coordinate support including referral to health;
• look at support for G in the home, and;
• look at additional support for G’s other siblings.
31. The evidence shows the manager did not review the social worker’s assessment at that point.
32. In early November, Mr and Mrs X asked the Council for an update on G’s assessment.
33. In November, a member of the family solutions plus service (FSPS) spoke to Mrs X to introduce themselves and update them on the outcome. Mrs X told them, she had believed the social worker who visited them previously, and who had carried out the assessment, was part of the children with disabilities service.
34. Later that same day, Mrs X sent the Council an email saying the Council had not sent her the child and family assessment. Mrs X asked for this to see how any further home visits would be beneficial for her family. She also said she was unhappy the Council had not referred her to the children with disabilities service, saying the decision the Council made here was wrong.
35. Mrs X then refused to allow the Council to go to a review meeting arranged by G’s school later that month.
36. In late November, a manager reviewed the social worker’s assessment. Their review set out the manager’s considerations of the information and the impact of G’s behaviour on their wider family.
37. The manager agreed with the social worker’s assessment that it could provide support for G under a CIN plan. The manager finalised the assessment by saying Mr and Mrs X had said they did not now want support provided from the team the Council had suggested.
38. While the Council gave Mr and Mrs X an update on the outcome in November, it did not give them a detailed explanation of why G did not meet the criteria for support by the children with disabilities team at this point.
39. During the complaint correspondence, Mr and Mrs X said the Council were wrong not to have G assessed by the children with disabilities team. They also said they believed the social worker who assessed G had recommended a disability assessment and that the manager had overturned this decision.
40. The Council sent Mr and Mrs X a complaint response in June 2023 and gave them an explanation of why it did not believe G was eligible for support by the children with disabilities team.
41. In response to my enquiries, the Council told me it should have sent the outcome letter to Mr and Mrs X in November, but this did not happen.

School Transport

42. In late August 2022, the Council sent Mr and Mrs X an email, which set out details of transport arrangements it had put in place for G to get to school, when the term started the following week. Alongside this it sent further guidelines with an instruction on how to update G’s passenger requirements.
43. In its initial considerations, the Council identified that G could travel without a passenger escort and there was no need for them to travel alone without another person.
44. In September, Mr and Mrs X complained to the Council because they learned G was travelling to school with another child and that other child’s escort. They were unhappy the Council had not told them this beforehand.
45. During the following academic year, G went to a holiday club, and this involved separate transport arrangements altogether, where there was no escort, because the other child was not travelling.
46. Mr and Mrs X then told the Council they had concerns there was a risk that G was travelling while unaccompanied. They told the Council that G may lash out or could try to leave the taxi suddenly.
47. The Council sent me a copy of the relevant risk assessment for this period. It says that G has an Education, Health and Care plan and had additional special needs including ASD and ADHD. It also has a record of potential risks, which include that G may lash out if distressed and may run off. The risk assessment identified that an escort would need to accompany G during transport to school.

My findings

Child in Need Assessment July-November 2022

48. When the Council receives a request from the parent of a disabled child for it to provide support, the council must decide whether the child needs the support. If they do, then the Council must deliver it. In making this decision, the Council should consider the child’s needs. Often this consideration will take the form of an assessment.
49. The Council had an instruction to assess G’s needs. The evidence shows it considered their needs, including previous support and decided it could provide support under a CIN plan. It decided there was not enough evidence that they needed support from its children with disabilities team. The social worker has recorded their reasoning for this on their assessment. I have no reason to find fault with this decision.
50. Mr and Mrs X asked for a full explanation of this decision in November along with a copy of the assessment and the Council did not provide this until June 2023. This was a fault in communication. This delay in giving a full explanation caused Mr and Mrs X an injustice, but they were aware of the outcome at the time and had declined any further support from the Council. In addition, because an explanation has now been given, I do not see there is any remaining unremedied injustice.

School Transport

51. The Council policy allows for other passengers and passenger escorts to travel in the same taxi. It was not fault the Council did this and did not tell Mr and Mrs X beforehand.
52. Nor is there any fault it did not provide G with a passenger escort initially. Mr and Mrs X did not ask for this or appeal the Council’s initial decision.
53. When the Council were aware of a change to the risk posed to G in travelling, it updated the risk assessment and made the necessary arrangements.

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Final decision

54. I have completed my investigation. There was some fault by the Council. However, the Council has already remedied the resulting injustice, therefore I have made no recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman