Summary: there was no fault in the Council’s assessment of Mr Y’s social care needs and support planning in the period before he left school and moved to a specialist post 19 college. There was fault in the way the Council considered a request for post 19 transport assistance for Mr Y. This caused injustice to Mr Y’s mother, Ms X, because she had to drive him to college which is some distance from their home. The Council has agreed to provide a suitable remedy.

The complaint

1. Ms X complains for her son, Mr Y, who is a young adult, and on her own behalf as his mother and carer. Mr Y lacks capacity to make a complaint. We consider Ms X is a suitable person to make the complaint on Mr Y’s behalf.
2. Ms X complains about the following matters:

1. The social worker’s assessment of Mr Y’s social care needs in March 2019 following his transition from Children’s Services to Adult Services and the degree to which she involved Ms X in the process;

2. The Funding Panel’s decision not to fund a placement for Mr Y at Organisation B for two days per week;

3. A reduction in the level of support in Mr Y’s new Care & Support Plan and a corresponding decrease in the personal budget and Direct Payments;

4. The refusal of her request for a new social worker;

5. The refusal of her application for transport to take Mr Y to College A.

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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 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 have spoken to Ms X and considered all the information she sent me.
6. I considered the Council’s response to my enquiries and documents from its social care and education records.
7. I have written to Ms X and the Council with my draft decision and considered their comments.

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What I found

The background to this complaint

8. Mr Y is a young adult under the age of 25. He has a diagnosis of severe autism with severe learning difficulties and a sensory processing disorder. He does not communicate verbally and uses a picture-based communication system. He lives with his mother, Ms X, who is his carer. Ms X is not currently working and has some health issues.
9. Mr Y has had an Education, Health and Care Plan (EHCP) since 2016, and a statement of special education needs before that. Until July 2019 he attended a special school for students up to the age of 19. Whilst in school, Mr Y had 1:1 support from a Learning Support Assistant in a small class of 8 students. The Council funded a taxi service to take Mr Y from his home to the school.
10. Mr Y has a social care package. Mrs X manages the Direct Payments and employs Personal Assistants to support Mr Y. While Mr Y was in full-time education at school, the package provided 16½ hours support per week. Ms X saved some of the Direct Payments to provide extra support for Mr Y in the school holidays. Mrs X was happy with this arrangement.
11. Mr Y’s placement at the special school ended in the summer of 2019 following his 19th birthday.
12. The Council continued to maintain Mr Y’s EHC Plan. Ms X did not consider there was any suitable post 19 provision for Mr Y in the Wigan area. She expressed a preference for Mr Y to attend College A. It delivers personalised educational and vocational programmes for young adults with learning difficulties and disabilities.
13. The Council did not agree there were no suitable educational placements in its area. It says Mr Y’s educational needs could have been met in the borough. But it agreed to Ms X’s parental preference for Mr Y to attend College A and named this setting in the amended EHC Plan it issued in October 2019. The Plan does not name any alternative education setting in Wigan which the Council considered would have been suitable for Mr Y’s needs.

Complaint a)

Statutory guidance on meeting eligible social care needs

14. Under the Care Act 2014 and statutory guidance councils have a duty to carry out an assessment where an adult may have needs for care and support.
15. Councils must support a person’s involvement in assessments and support planning. This may include identifying an appropriate individual to enable their involvement or arranging an independent advocate.

What happened

16. A social worker in the Transitions team, who has worked with Mr Y since 2017, began to reassess his social care needs in January 2019. She had to complete a new assessment of his eligible needs and prepare a Support Plan before he left school and moved to a new post 19 setting.
17. As part of the assessment, Officer A gathered information from Ms X, staff in the school and other professionals who supported Mr Y. She:
• met the manager of Organisation B in January 2019 to discuss Mr Y’s placement and gather information about the cost and type of support Mr Y would need if it continued;
• spoke to Mr Y’s teacher, Occupational Therapist and a community nurse when she visited Mr Y’s school in January 2019;
• returned to the school in early February 2019 to meet Mr Y and observe him in the classroom setting.
18. Officer A then met Ms X and the assistant headteacher of Mr Y’s school in late March 2019 to discuss and complete the social care needs assessment form. Ms X had the opportunity to explain Mr Y’s needs, express her views and these are recorded on the form. At the end of the meeting Ms X signed the assessment document to confirm it was an accurate record.
19. Officer A had another meeting with Ms X at the school on 1 April 2019 to go through Mr Y’s Support Plan. The Plan records Mr Y’s eligible needs under 9 of the 12 outcomes, including accessing and engaging in work, training, education or volunteering.
20. On 30 May 2019 Officer A finalised Mr Y’s Support Plan and sent a copy to Ms X.
21. Ms X complained to the Council about the way Officer A carried out the assessment. She did not consider Officer A had spent enough time with Mr Y at home and at school to properly understand his needs and set an appropriate personal budget. She wanted a new assessment.

Analysis

22. The evidence shows Officer A did seek Ms X’s views and involve her in Mr Y’s assessment. They had two face to face meetings at the school. Ms X was acting as Mr Y’s advocate and she was given the opportunity to express her views about Mr Y’s needs and how they could be met.
23. At the end of the first meeting with Ms X, Officer A read the completed assessment. She recorded in her notes that Ms X agreed with it. Ms X signed the form.
24. Officer A visited the school twice to gather information during the assessment. Mr Y was not present on one visit but she spent time with him in the classroom on the second visit. She spoke to relevant professionals.
25. On the evidence I have seen so far, it is unlikely I will find fault in the way Officer A carried out the needs assessment. She involved Ms X in the process and listened to and recorded her views. She met Mr Y and observed him in the school setting and obtained information from the professionals who supported him.

Complaint b)

The Funding Panel’s decision on a placement at Organisation B

26. When it decides how to meet eligible needs, the council may consider its own finances and budgetary position, and it must comply with its related public law duties. It must ensure the funding available to the council is sufficient to meet the needs of the entire local population. The council may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual when it decides how to meet an individual’s needs (but not whether those needs are met). However, the council should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – this would not deliver a person-centred approach.
27. The authority may take decisions on a case-by-case basis weighing up the total costs of different potential options for meeting needs, and include cost as a relevant factor when it decides between suitable alternative options for meeting needs. This does not mean it must choose the cheapest option; but the one which delivers the outcomes desired for the best value.

What happened

28. In his final year at school, Mr Y spent one day a week at Organisation B. It offers alternative day care & support for people with learning difficulties, physical disabilities or other complex needs. It offers a Pathways to Adulthood programme for young people aged 16 to 24 to help them prepare for work, independent living or volunteering and access appropriate training to achieve qualifications. It is a social care provision and not a registered educational establishment.
29. Organisation B is not in the Wigan area but is a short drive from Ms X and Mr Y’s home.
30. Ms X asked Adult Social Care to fund a placement at Organisation B for the two weekdays when Mr Y was not at College A. Officer A explored this option. She met the manager of Organisation B in late January 2019 to discuss Mr Y’s needs. The manager said they could support Mr Y. He said it would cost £163 per day based on providing 1:1 support. The Council says the manager would not consider a placement with less intensive support.
31. Mr Y’s needs assessment says he needs “full support in the community” because he has no road safety awareness and would be vulnerable if he went out alone.
32. On 17 May Officer A sent the request for funding for two days at Organisation B to the Adult Care Funding Panel.
33. The Panel did not approve the request for funding for two days at Organisation B. It said Mr Y’s needs assessment did not indicate he always needed one to one support. He needs one to one support when he is out in the community because he is not aware of dangers and is vulnerable. But he does not require the same level of support in a social care setting. The Panel considered Mr Y could be safely supported in a small group. It also considered Mr Y’s needs could be met appropriately by other local services or by accessing activities in the community with his personal assistants. Other local services had been suggested to Ms X but she did not want to consider them.
34. On 28 May a manager in Adult Services met Ms X and her advocate to discuss the Panel’s decision and to explore various options for supporting Mr Y on the days he did not attend College A.
35. Ms X is dissatisfied with the Panel’s decision. She is now using some of Mr Y’s Direct Payment to pay for him to attend Organisation B one day a week.

Analysis

36. The Care Act needs assessment confirmed Mr Y has several eligible needs. One of these is a need for support to access services in the local community.
37. The Council suggested a specific service in the local area which could meet this need. Alternatively, it suggested Mr Y could access other services with support from one of his personal assistants. It does not accept that one to one support at Organisation B was the only way this need could be met.
38. Ms X wants Mr Y to continue his placement at Organisation B because he is familiar with the setting and staff and enjoys the activities offered there. But the Council does not have to fund the preferred service if suitable alternatives are available which could meet the eligible need. The Council says it is not necessary or proportionate to fund a placement with one to one support for Mr Y at Organisation B when he has no assessed need for this in a social care setting.
39. I do not consider there was fault in the way the Funding Panel made the decision not to fund a placement at Organisation B. The Council was entitled to consider different options for meeting Mr Y’s eligible needs and the relative costs. It did not have to agree to fund Ms X’s preferred option when it considered there were other ways to meet Mr Y’s needs. The Ombudsman cannot find fault with a decision that has been made properly because Ms X disagrees with it.
40. Ms X may continue using part of Mr Y’s Direct Payment to pay for him to attend Organisation B if she wishes.

Complaint c)

41. When Mr Y made the Transition to Children’s to Adult Services, the Direct Payment package was increased from 13.5 hours to 23.5 hours per week. The Council says it also agreed to pay an increased hourly rate of £10.95 to cover the higher rate Ms X paid Mr Y’s personal assistants.
42. After Mr Y left school, the Council increased the package by a further 16 hours per week. It did this to provide an additional eight hours support for Mr Y on the two weekdays he does not go to College A.
43. The current personal budget of £440.84 funds 39.5 hours of weekly support from personal assistants. This is a 52-week package which can be used flexibly to support Mr Y to engage in activities in the community and provide respite for Ms X.
44. An additional 39.5 hours per year is included in the package as a contingency for Ms X to use in the event of needing emergency cover.
45. The Council says it has not reduced the social care package. On the contrary, it has increased the hours of support, and the personal budget, twice since Mr Y made the transition to Adult Services.

Analysis

46. The Council has not reduced Mr Y’s social care package.
47. Until July 2019, Mr Y attended the special school five days a week. So Ms X used the Direct Payments to arrange support after school, on weekends and in school holidays. Mr Y is no longer in full-time education. He now needs support on the two weekdays he does not attend College A. The Council met this additional need by adding 16 extra hours to the existing care package.
48. The social care package must be sufficient to meet the identified eligible needs set out in Mr Y’s assessment and Support Plan. The package of 39.5 hours per week meets the assessed eligible needs.

Complaint d) Ms X’s request for a different social worker for Mr Y

49. In mid-April 2019 Ms X made a complaint to the Council about Officer A. She said she would like a new social worker because she did not feel Officer A had listened to her views during Mr Y’s assessment.
50. A manager in Adult Services replied to Ms X’s complaint. She acknowledged Ms X’s feeling that Officer A had not listened to her or taken her wishes into account. But she said Officer A’s role was to ensure Mr Y’s Support Plan reflects the identified eligible needs. She outlined the meetings Officer A had with Ms X and professionals to establish Mr Y’s needs.
51. The manager told Ms X she did not consider it would benefit Mr Y to allocate a new social worker at such a late stage in the transition process. She said Officer A had spent time getting to know Mr Y and a change of social worker could be disruptive and delay the post 19 transition planning.
52. When she met the manager in late May 2029, Ms X said she felt her relationship with Officer A had broken down. She did not feel she had communicated with her well during Mr Y’s assessment.
53. In response to our enquiries, the Council says Officer A did communicate regularly with Ms X and she worked to ensure her views were properly considered.
54. In response to an MP’s enquiry in February 2019, the Council had acknowledged Ms X was upset when Officer A informed her by email, rather than in a face to face meeting, about a proposal to reduce support for Mr Y during the school holidays. In the event, it did not proceed with this proposed change. Following this contact, Officer A noted Ms X’s preference for face to face meetings to discuss changes to Mr Y’s care package. She arranged meetings with Ms X in March and April 2019.

Analysis

55. The Council acknowledged Ms X’s request for a different social worker to support Mr Y. It did not consider there were good reasons to reallocate the case. It also had to consider whether accepting Ms X’s request at a time when Mr Y was close to leaving school may have adversely affected planning for his post 19 provision.
56. Although Ms X was entitled to express her views and make this request, it was not fault for the Council to decide it would be better for Officer A to continue working with Mr Y and Ms X to complete the assessment.

Complaint e)

Post 19 transport to an education setting - the law and guidance

57. Local authorities have a duty to encourage, enable and assist young people with learning difficulties or disabilities to participate in education and training up to the age of 25.
58. Section 508F of the Education Act 1996 requires local authorities to make transport arrangements they consider ‘necessary’ to enable relevant young adults to attend institutions where they receive education or training. A “relevant young adult” is an adult under 25 for whom the local authority maintains an EHC Plan and who started the programme of learning after their 19th birthday.
59. When a council finds it is “necessary” to arrange transport for the young adult, this must be free of charge.
60. If a local authority decides it is not necessary to arrange transport, it may still choose to pay some of all of the reasonable travel costs under section 508F(8) or as social care provision under the Care Act.
61. Section 508G of the Education Act 1996 requires local authorities to set out information about travel provision for relevant young adults so they and their families can make informed choices between different educational settings. Councils are also required to have clear transport policies set out in their Local Offer (SEN Code of Practice 2014)
62. Statutory guidance on post 16 transport says local authorities should include a process for complaints or appeals in its transport policy statement.
63. Parents have a legal duty to ensure children of compulsory school age attend school. But parental responsibility ends when a young person reaches the age of 18 and there is no duty for a parent to transport a dependent adult to college. This was confirmed by the High Court in the case of CP v North East Lincolnshire Council [2018] EWHC 220 (Admin).
64. A council has no duty to meet any eligible needs which are being met by a carer for as long as the carer continues to do so. But the council must consider whether the carer is, and continues to be, able and willing, to provide this care to the adult.

Relevant Ombudsman reports on transport

65. In March 2017 the Ombudsman issued a Focus Report “All on board? Navigating school transport issues – learning lessons from complaints”.
66. In this report the Ombudsman advised councils that:
• Eligibility for transport is determined by the Education Act 1996 and it is not relevant whether the person receives Disability Living Allowance (DLA). The same principle applies to Personal Independence Payment (PIP) which has replaced DLA for adults;
• Motability is the body that runs the Motability car scheme for those who receive DLA or PIP – unless the Council is the disabled person’s legal appointee, it cannot specify how a Motability vehicle should be used.

67. In July 2018 the Ombudsman published a report following his investigation of complaint against the London Borough of Lewisham (16 012 609). He found:
• It is a relevant consideration that a parent has no responsibility or legal duty to ensure a 19 year old attends college;
• Where the parent indicates they are not able or willing to drive their adult son or daughter to college every day, they do not need to justify this or give reasons. Once a parent makes this clear to the Council, it should assess the transport application without reference to the parent’s availability.

The Council’s transport policy

68. The Council’s post 16 Transport policy includes a section on transport for students with disabilities and/or learning difficulties. It says it will only provide home to school transport in exceptional circumstances.
69. It says students with special educational needs and/or disabilities (SEND) who attend courses outside Wigan, will be entitled to transport provided this is the nearest suitable course.
70. There is no section in the policy which deals specifically with the duties owed to relevant young adults aged 19 to 24.
71. The policy includes information about a two stage procedure for appeals against a transport decision. The first stage review is carried out by a senior officer. At the second stage, the appeal is considered by an independent panel.

What happened

72. Mr Y has attended College A since September 2019 for three days a week in term-time. The EHC Plan says this placement is due to continue until July 2022.
73. Mr Y has a Motability car. He cannot drive the car and relies on his mother to do so. He cannot travel independently on public transport because of his disabilities.
74. Since September Ms X has been driving Mr Y to College A. College A is about 13 miles from their home. The average journey time is 30 minutes each way. Ms X makes six return trips per week in term-time. She says she spends about two hours driving on these days.
75. Ms X says it is time-consuming and expensive to drive Mr Y to college. She says it costs about £40 per week. She suffers from arthritis in her knee and foot. She is also due to have an operation for another medical condition. She finds it tiring to make the return trip twice daily and the driving aggravates her medical conditions. She also says it severely restricts what she can do on the days Mr Y attends college.
76. In April 2019 the EHC Plan Coordinator told Ms X:

“With regards to transport I am afraid that I cannot comment as education funding cannot be allocated to provide transport. For students who access a Post 19 education the responsibility of education begins when the students arrive on site and the duration of the hours, weeks and months that they require education support.

77. Following a meeting in May 2019, Ms X made further requests for the Council to arrange transport for Mr Y. She completed two SEN transport application forms in June and August 2019. The Education Service refused both applications.
78. Ms X says she was not told she could use the appeal procedure to challenge these decisions. She says the Education Service advised her to speak to Mr Y’s social worker instead about the transport request.
79. Section A of Mr Y’s amended EHC Plan refers to Ms X’s request for transport. Section D – which sets out Mr Y’s social care needs – says:

“[Mr Y] has a mobility car, and this will be used to transport Mr Y to his settings”

80. The Plan does not say whether Ms X would drive Mr Y to college, or that she had confirmed her willingness to meet this need.
81. In response to my enquiries, the Council said the provision of a taxi to transport Mr Y to college was considered only by Adult Services as part of the social care assessment. It reiterated its view that:

“Education funding for post 19 placements such as [Mr Y’s] cover education outcomes and needs only, not transport to and from the provision.”

Analysis

82. Mr Y is an adult learner with an EHC Plan. He cannot use public transport independently or drive. He has a Motability car but relies on others to drive it.
83. As Mr Y is an adult, Ms X no longer has parental responsibility for him. This means she has no legal duty to facilitate his attendance at college. The Council cannot compel Ms X to use the Motability car to drive Mr Y to college if she is not willing or able to do so. Ms X does not need to justify her decision or give reasons, although she has mentioned the time, expense and the impact of driving on her medical conditions.
84. The council has a duty under section 508F of the Education Act 1996 to consider whether it is necessary to arrange transport to enable Mr Y, who is a relevant young adult, to attend college. From the statements the Council made to Ms X and to us, it is apparent that it did not have regard to the section 508F duty when it considered Ms X’s applications for transport assistance. Instead it rejected her application twice on the erroneous grounds that it has no duty to consider the need for transport for a post 19 placement. The Council’s statements demonstrate it has failed to understand, or ignored, its duty to relevant young adults like Mr Y. It was simply wrong to tell Ms X her request for transport could only be considered in the context of duties owed under the Care Act 2014. That was a significant fault.
85. I also consider the social care assessment was wrong to conclude that Mr Y’s need for transport could be met by Ms X when she had repeatedly said she was not able and willing to drive him. If a carer is not willing and able to meet an eligible need, then the Council must meet it. Ms X has been forced to meet this need against her wishes to enable Mr Y to attend his college placement.
86. These faults caused significant injustice. Ms X was put to the time and trouble of making two transport applications, both of which were dismissed due to a misunderstanding, or ignorance, of the section 508 duty. She has been making six return trips a week in term-time to drive Mr Y to College A since September 2019. She incurred extra expense and it has placed an additional burden on her as Mr Y’s carer.
87. The Council’s post 16 transport policy and its Local Offer do not explain the entitlements of “relevant young adults” aged 19 or over with an EHC Plan to continue in education or training. This is a serious omission. It means the Council is not complying with the duty in section 508G of the Education Act 1996 to publish this information. It is also failing to comply with statutory guidance in the SEN Code of Practice which says it must include this information in its Local Offer. This lack of information has consequences for all post 19 adult learners and their families in the Council’s area.

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Agreed action

88. After it received my draft decision, the Council reconsidered Ms X’s request for transport assistance. It decided it is necessary to arrange transport for Mr Y to attend college under section 508F(1).
89. Within one month, the Council will:
• write to Ms X to confirm its decision and send us a copy of the letter;
• review the statement in Section D of the EHC Plan which says Mr Y’s Motability car will be used to transport him to his settings. This statement implies Ms X had agreed to meet this need by driving Mr Y to College A. However, she is not willing to do this and the Council has no power to compel her to provide this support.
• pay Ms X £40 for each week she has driven Mr Y to College A since he started the placement in September 2019. This reimburses the expenses she incurred and recognises the inconvenience. This payment will continue until new arrangements are in place which relieve Ms X of the responsibility for driving Mr Y to college.
90. Within two months, the Council will:
• review its post 16 transport policy to include information about the duties owed to post 19 relevant young adults. This should explain the duties owed under section 508F of the Education Act 1996. It should also be clear that the Council cannot rely on parents or carers of relevant young adults to provide transport to educational settings if they are not able or willing to do so;
• include information in the post 16 transport policy about using the appeal procedure to challenge decisions on post 19 transport;
• identify other “relevant young adults” who may have been similarly affected by a refusal to consider a request for transport and contact them, or their parents or carers, to invite them to reapply for assistance.

Final decision

91. I have completed the investigation. I have not upheld parts a) to d) of the complaint because I found no evidence of fault.
92. The Council’s consideration of Ms X’s request for transport assistance for Mr Y was flawed. That was fault and caused her injustice. The Council has agreed to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman