The Ombudsman's final decision
Summary: Mrs X complains on behalf of Mr Y. She complains that Council is wrongly charging a client contribution to Mr Y for social care while he boards at a residential college. There is no evidence of fault in how the Council reached its decision to charge a client contribution to Mr Y for the social care.
The complaint
Mrs X complains on behalf of Mr Y. She complaints that the Council is wrongly charging Mr Y a contribution for his social care while he boards at residential college. Mrs X considers the Council should not charge for this care as Mr Y requires it to access his educational provision and therefore should be considered as part of his board and lodging.
The Ombudsman’s role and powers
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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
I have: considered the complaint and the information provided by Mrs X; discussed the issues with Mrs X; made enquiries of the Council and considered the information provided; invited Mrs X and the Council to comment on the draft decision. I considered any comments received before making a final decision.
What I found
Law and guidance SEND is a tribunal that considers special educational needs. The tribunal considers appeals against council decisions regarding special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)) A child with special educational needs 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
The Care Act 2014 allows councils to charge people for the social care they receive. Councils will carry out an assessment of a person’s finances to decide what contribution they should make. This is called the client contribution.
The Children and Families Act 2014 provides that local authorities must pay any fees payable in respect of the special educational provision made at the placement named in their EHC plan which is required to meet the special educational needs of the young person. The local authority must also pay any fees in respect of board and lodging if it is satisfied that special education provision cannot be provided at the placement unless board and lodging are also provided. (Section 63, Children and Families Act 2014) What happened Mr Y is a young adult with disabilities and a need for care and support. Mr Y has received direct payments for a number of years which are managed by Mrs X on his behalf. Mr Y has an EHC plan. In January 2020 a SEND Tribunal named a residential college on Mr Y’s EHC plan. He has attended the residential college since September 2020. Mr Y requires care and support while he stays overnight at the college. He also stays at the college for respite care for a number of weekends a year.
Mrs X has previously made a complaint to the Ombudsman about how it dealt with Mr Y’s direct payments and client contributions. We found fault and recommended the Council address any outstanding concerns Mrs X had about the direct payment account.
One of Mrs X’s concerns was that the Council was charging a client contribution for Mr Y’s care while he boards at college. Mrs X considered the Council should consider his care as part of his board and lodging costs in accordance with section 63 of the Children and Families Act. The Council advised that Mr Y’s care was social care not educational provision so was chargeable.
Mrs X made a complaint to the Council about its decision to charge Mr Y a contribution for his social care while at college. In response the Council said: Section 63 of the Children and Families Act does not require the Council to pay for any element of adult social care provision which is commissioned under the Care Act 2014.
Section 63 of the Children and Families Act refers to educational needs and separately to board and lodging. It does not refer to adult social care.
The Council’s position is supported by case law: ESCC v KS (SEN) [2017] 273 (AAC). This provided that the fees imposed by section 63 (2) arise only in response of fees payable in respect of education or training and do not extend to other matters.
Mrs X remained unhappy with the Council’s decision so made a complaint to the Ombudsman. She considers Mr Y’s social care while at college is part of his board and lodging and is essential to allow him to attend college so the Council should not charge a contribution.
In response to my enquiries the Council said: The legislation as a whole draws the distinction between education, health and social care provision and the funding for it. The case law explains that the fees imposed by section 63 of the Children and Families Act arise only in respect of education and training and do not extend to other matters.
The legislation uses the specific phrase ‘board and lodging’. The Council considers this should be given its specific and natural meaning such as the costs of food. Had the legislation intended to require social or health care provided at placements if the educational provision could not be delivered without those, then the legislation would have been drafted in that way.
The Council therefore considers the legislation does not provide that it should fully pay for Mr Y’s social care costs even if he cannot access educational provision without the social care.
The Council also considers this ensures a fairer position across all individuals who are liable to pay a client contribution. People who access educational provision on a day placement basis and live at home are required to pay for their social care.
The SEND Tribunal decision did not require Mr Y to have a waking day curriculum and education outside of the normal educational day. So the provision in section F should be made during the college day. The Council meets the costs of the social care provision set out in section F of Mr Y’s EHC plan.
The Council acknowledges it has taken some time to deal with Mr Y’s financial assessments. It will waive any retrospective client contribution due to the delay. I note this largely relates to Mrs X’s earlier complaint to the Ombudsman.
Analysis We are not a right of appeal and it is not my role to decide if the Council should charge Mr Y a client contribution. My role is to examine whether there was any fault in how the Council reached its decision that it should charge a client contribution for Mr Y’s social care which he receives after the end of the college day.
There is no evidence of fault in how the Council reached its decision to charge a client contribution for Mr Y’s social care when he stays overnight at college. The Council has addressed itself to the matter. The Council has explained why it will not fully pay for Mr Y’s social care after the end of the college day as it does not consider it to be educational provision. The Council has also considered case law when reaching this decision and this lends weight to its position. I am mindful the case law relates to a case about health provision rather than social care. But I am satisfied it is relevant to Mr Y’s circumstances as it clarifies that section 63 (2) of the Children and Families Act arises only in respect of fees payable in respect of education and training.
The Council considers that board and lodging in the legislation has an ordinary meaning in that it refers to costs such as food, not social care. The Council has considered if this should include social care costs and I do not consider the Council’s position to be flawed.
I therefore do not consider there is fault in how the Council reached its decision to charge a client contribution to Mr Y and I do not have grounds to question it.
Final decision
There is no evidence of fault in how the Council made its decision to charge a client contribution for social care provided to Mr Y at the end of the college day. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman