Summary: Mrs B complains for her son, C, that the Council’s Sensory Impairment Service within the education department, was unwilling to work with social care to continue support from a deaf tutor when C’s education ended. The Ombudsman finds that the Council was not at fault in failing to agree continued support from the tutor. However, there was fault in the failure to conduct a proper review or reassessment when that support came to an end. That led to injustice for which a remedy has been agreed.

The complaint

1. The complainant, whom I shall call Mrs B, complains for her son, C, that the Council’s Sensory Impairment Service within the education department, was unwilling to work with social care to continue support from a deaf tutor, which is a service she considers he requires to support his individual needs.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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, section 34(3), as amended)
3. 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)
4. 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)

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How I considered this complaint

5. I considered all the information provided by Mrs B about this complaint. I made written enquiries of the Council and considered the information and evidence it provided in response.
6. I took account of the Ombudsman’s guidance on remedies.
7. Mrs B and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

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What I found

Legal and administrative information

Care needs assessment

8. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.

Care plan

9. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Reviews

10. Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. The authority should consider a light touch review six to eight weeks after agreement and signing off the plan and personal budget. It should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. As well as the duty to keep plans under review generally, the Act puts a duty on the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one.

Personal budgets and direct payments

11. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.
12. One of the ways in which a personal budget can be administered is as a direct payment. (Care and Support Statutory Guidance 2014). Direct payments provide independence, choice, and control by enabling people to commission their own care and support to meet their eligible needs. The Council should support people to use and manage the payment properly.

Education, health, and care plans

13. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the young person’s needs and what arrangements should be made to meet them.

Background

14. C is 22 years old. He is multi-sensory impaired (MSI), being profoundly deaf and visually impaired. He has cerebral palsy and complex learning needs. From a very young age he was supported by a deaf tutor, who is himself profoundly deaf. Mrs B reports that consequently the tutor spent many years learning about C’s needs and how best to support him. He taught him important sign language, communication skills and coping strategies, and they built a unique relationship. The support was part of a package provided by the Council’s Sensory Impairment Service (SIS). C was attending a specialist college.
15. C had an EHC plan which ended in July 2018. The annual review of his social care needs at this time noted that as an individual with congenital multi-sensory impairment, he required the specialist skills of an intervenor to offer him the best opportunity to succeed educationally, practically, and socially. He had an intervenor at the specialist college, and Mrs B agreed the college was giving C the support he needed to reach his potential.
16. The care and support plan which resulted from the annual review noted that C had identified and eligible needs in a number of areas, including support with his communication needs; to continue working and volunteering and learning his British Sign Language (BSL). The care plan set out that needs would be met by attendance at the specialist college five days a week, with a direct payment for respite and weekend personal assistant support.
17. Support continued from SIS for a year after C’s formal education finished in July 2018 in the hope that this flexible approach would allow him to pass the Level 2 BSL exams. This continued support for the academic year of 2018-19 was agreed exceptionally, taking account of the complexity of C’s needs and information from the team tutor, as the role of the deaf tutor (BSL Instructor) is specifically for students aged up to 19 years, funded by the Designated Schools Grant.
18. At the end of the academic year, C had not yet been able to pass his BSL Level 2 exams and so in July 2019 his tutor enquired about continuing sessions from September 2019. As an exception again, it was agreed that a further four to six sessions could be completed with the BSL tutor ending at the October half term to help C retake one of his exams. The Council confirmed SIS was unable to support C longer than this: it does not provide support for adults who are accessing adult day services.
19. At this time it was also noted that Mrs B had concerns about the support ending because wanted the tutor to be able to continue working with C having built a relationship over many years, to support him to access the community and work with him about the deaf world and its culture. The Council’s position is that this is not the role of the deaf tutor and that this type of support could be accessed through other services.
20. In October 2019 C passed his BSL Level 2 exam, which had been the stated aim of the additional and exceptional extended support.

What happened next

21. On 3 October 2019, a care needs review meeting was held. The note made about the review said that C was continuing to do well at the college where he was still “on an education timetable” and would need to transition over to a social care timetable. It noted that C’s support from the deaf tutor would soon end and said this was unfortunate as it was “essential to [C]’s development and supports [C] to recognise his identity”. It said that the question of the support continuing had been asked, and this was to be explored.
22. On 8 October Mrs B asked the Council if C could volunteer supporting his deaf tutor during his job role on a signing course, as a way for him to continue to benefit from his tutor's input, while being supported by his one-to-one intervenor at all times. The Council did not agree to this, taking the view that it would take the tutor’s attention away from the group learning. Mrs B was signposted to a charity that supports deaf people and their families for support.
23. Mrs B felt strongly that C needed the support of the deaf tutor more than ever, not just to support him in his continued development of his first language, BSL, but to support him in accessing services in the community and encouraging independence. She felt that the tutor’s understanding of C’s individual needs and how to support him was paramount to his well-being and development, and should be allowed to continue.

The complaint and what followed

24. At the beginning of January 2020 Mrs B made a complaint about the withdrawal of support from SIS. In its response the Council reiterated that the extended support C had received was exceptional and that C could continue to develop community links with deaf peers through his continued attendance at the college and with the deaf support charity which had been signposted.
25. The Council says that after discussions with Mrs B and the college it was felt that [C] was in need of a deaf mentor or personal assistant who could support [C] with community access and understanding of deaf culture. And so, in February 2020 a request was submitted for funding for additional support of four hours a week from a deaf personal assistant, to act as a deaf mentor for C.
26. The narrative section of the referral form included the following information: that C was still attending the college, having transitioned from the education programme to the social care programme gradually after his EHC plan had ceased in June 2018, with the full transition having been made in November 2019. It noted C already had a direct payment in place for respite care. The referral noted that the deaf tutor had supported C from a young age and that Mrs B and her son had been caused distress when thus support came to an end. Mrs B reported that C had been disruptive at home, had refused to go respite and an overall decline in his wellbeing had been noted. It noted: “At [C]’s review it was recognised that [his] unique support needs were met by the support that was in place”, and said that it was hoped that if the proposed support were agreed it would allow C opportunities to access the community and identify risks as a deaf person.
27. The funding request for a deaf mentor four hours a week was agreed and the plan then was for Mrs B to advertise, with support from the Council, for a suitable worker for C, with a direct payment to be arranged to meet this eligible need.

Analysis

28. The Council has explained SIS has one BSL instructor whose role is solely the teaching of BSL to children and young people up to 19 years, SIS staff and school staff across the county. While it allowed an extension to this in C’s case, its decision to end that support after the agreed extended period was a decision the Council was entitled to make and I find no fault in how it did so.
29. However, as set out at paragraph 10 above, councils should conduct a review of a care and support plan at least every 12 months. In this case, C’s assessed needs were reviewed in July 2018, and his work with the tutor ended in October 2019. No formal review document was completed in October 2019. The Council has said that this was because it was already aware of the significant change in need and C was undergoing a full re-assessment: I have not been provided with evidence of such re-assessment however. It was fault not to carry out a full review or re-assessment in October 2019 when the tutoring came to an end. The Council had plenty of notice of this change in circumstances, and its noted view at this point, as set out on paragraph 21 above, was that the tutor was ‘essential to [C]’s development’: this was unequivocal and strong.
30. Given the above, and the fact that when the matter was formally considered in February 2020 it was acknowledged that C had a need for an additional four hours support from a deaf mentor or personal assistant each week (notwithstanding that there is no care plan to evidence how the figure of four hours was arrived at), on balance I find that it is more likely than not that had the Council properly considered the matter as the tutoring support came to an end, this conclusion would have been reached and funding for appropriate support put in place several months sooner.

Injustice to C and to Mrs B

31. Due to the restrictions brought about by the Covid19 pandemic, Mrs B has been unable to source a deaf mentor for C. However, had the funding been agreed sooner, it is possible a mentor may have been in place and working with C before March 2020. That uncertainty is an injustice. In addition, Mrs B was put to some time and trouble seeking to advocate on her son’s behalf for services to which he is entitled, and in pursuing the complaint which preceded the award of the additional hours of support.

Agreed action

32. In recognition of the injustice caused by the fault identified by this investigation, I recommended that within four weeks of the date of the final decision on the complaint the Council takes the following action:

• Issues Mrs B and C with a formal written apology;
• Pays C £350 in recognition of the uncertainty about whether he might have had additional support sooner, had the fault not occurred;
• Pays Mrs B £150 in recognition of time and trouble taken in pursuing the matter;
• Confirms in writing to Mrs B that the accumulated direct payment sums for the four hours additional support for a deaf mentor (or an equivalent sum) remains available for C to use on appropriate support, which it has not yet been possible to secure. If Mrs B wishes the Council to assist in the recruitment of a suitable mentor, it has agreed to provide this; and
• Arranges to complete a review and associated care plan to reflect and properly document C’s current needs and care package.

33. The Council has agreed to my recommendations.

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Final decision

34. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman