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Durham County Council (18 010 457)

Category : Adult care services > Other

Decision : Upheld

Decision date : 20 Mar 2019

The Ombudsman's final decision:

Summary: Mrs F complains about a lack of service provision for her severely autistic adult daughter since she left school. The Ombudsman has found the Council failed to meet J’s needs. It has agreed to apologise and make a payment to acknowledge the injustice caused.

The complaint

  1. Mrs F complains about a lack of service provision for her severely autistic adult daughter since she left school. Mrs F says the Council failed to meet her daughter’s needs between July and October 2018 and the support provided since then is insufficient.
  2. Mrs F says the lack of support has caused her daughter to become more insular and her and her husband to become isolated.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I spoke to Mrs F about her complaint and considered the information she sent, the Council’s response to my enquiries and:
    • The Care Act 2014 (“the Act”)
    • The Care and Support Statutory Guidance 2014 (“the Guidance”)
    • The Special Educational Needs and Disability Code of Practice: 0 to 25 years 2015
  2. I gave Mrs F and the Council an opportunity to comment on my draft decision.

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What I found

  1. The Act requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
  2. Where a council determines that a person has any eligible needs, it must meet those needs. The council must provide a care and support plan which sets out the person’s needs, what they want to achieve, which needs the council will meet and how they will meet them.

Commissioning care and support

  1. The Act places duties on local authorities to promote the efficient and effective operation of the market for adult care and support. This means councils must encourage a variety of different providers and different types of services into the local market. This is to provide local people who need care and support with a choice of services to meet their needs and reasonable preferences.

Education, Health and Care Plans

  1. A child or young person aged 19 to 25 with special educational needs (SEND) may have an Education, Health and Care Plan (EHC plan). This sets out the young person's needs and what arrangements should be made to meet them. The council is responsible for making sure that all the arrangements specified in the EHC plan are put in place. Parents may appeal to the SEND Tribunal about the provision specified in an EHC plan.
  2. Where young people aged 18 or over continue to have EHC plans, and are receiving care and support, the care and support plan forms the ‘care’ element of the EHC plan.
  3. Where it is known that a young person will soon be completing their time in education and training, the council should use the annual review prior to ceasing the EHC plan to agree the support the young person will have once they have left education. The care plan will remain in place when the other elements of the EHC plan cease.

Ceasing an EHC plan

  1. A council may cease to maintain an EHC plan only if it determines that it is no longer necessary for the plan to be maintained, or if it is no longer responsible for the child or young person. If the council decides to cease to maintain the EHC plan, it must notify the child's parent, or the young person, and the school. It must also give the child's parent details of their right to appeal to the SEND Tribunal.

What happened

  1. Mrs F’s adult daughter, J, is severely autistic with learning difficulties. She is non-verbal and has challenging behaviours. J was attending a school for pupils with special educational needs and had an EHC plan. The care element of the EHC plan said J had direct payments to fund a support worker to enable her to access the community for 18 hours per month.
  2. J was due to leave school in July 2018. In January 2018 there was a meeting to discuss the best options for her. Mrs F wanted J to have a summer holiday, so the plan was for support to be in place from 17 September 2018. It was agreed J should receive a bespoke package of support five days a week, to enable her to achieve outcomes such as life skills and more independence. It was noted these outcomes could be achieved through education or social care provision. Mrs F and the social worker visited a number of providers, including one education provider.
  3. On 22 March 2018 a further meeting agreed that the best option for J was a social care provider (Provider 1), as it was a specialist autism provider. The social worker asked Provider 1 to assess J. I have seen no evidence that the Council notified Mrs F at this stage that it intended to cease the EHC plan.
  4. Mrs F was concerned Provider 1 may not be the best service for J, so in May 2018 the social worker contacted Provider 2.
  5. A new EHC plan was issued on 3 May 2018. This said J’s education placement would end and she would transfer to social care. A formal notification of the intention to cease the EHC plan was sent to Mrs F.
  6. The social worker chased up Provider 1’s assessment of J. It asked her to request one in writing, which she did. Provider 1 assessed J in June 2018 and decided it was unable to meet her needs.
  7. The social worker asked Provider 2 if it would be able to support J. Provider 2 assessed J and said its new pilot service would be suitable, but this was only for two days a week.
  8. Following more visits to other providers, on 17 August 2018 the social worker confirmed to Mrs F that the only service able to meet J’s needs was Provider 2’s new pilot service. She asked the Council whether the service could be commissioned for J and whether it could be provided five days a week.
  9. Mrs F said she felt the family had been pushed into choosing this service as no others were available. She was also concerned that J’s education provision was to be ended.
  10. On 31 August 2018 the Council agreed to fund two days a week at Provider 2’s pilot scheme, with the aim of building up to five days a week. The planned start date was 17 September 2018, but this was later put back to 1 October 2018 due to a lack of staffing at the scheme.
  11. Mrs F complained to the Council in September 2018 that there was a lack of suitable services for J. In its response, the Council said it had fulfilled its duty of care by assessing J and providing a service that could meet her needs. The Council said it encouraged new providers to join its framework, but there were limits on choice when individuals had complex needs.
  12. Mrs F complained to the Ombudsman. She said Provider 2 could manage J’s behaviour but offered little else and was only for two days a week. She said a specialised autistic provider was needed in the area.
  13. The Council reviewed J’s care provision on 31 October 2018. It was confirmed the service for J would not increase to five days per week until 21 January 2019 because of a lack of staffing. The Council offered additional direct payments, but Mrs F declined this as it was difficult to find suitable workers.
  14. Since complaining to the Ombudsman, Mrs F has said she will appeal to the SEND Tribunal about the decision to cease J’s EHC plan. In response to my enquiries, the Council said it was considering whether J could access an education service three days a week and Provider 2 two days a week.
  15. In response to my draft decision, Mrs F said the placement with Provider 2 was not successful and eventually broke down on 11 February 2019.

My findings

  1. The Guidance says councils must encourage a variety of providers to join the local market so that people have a choice of services to meet their care and support needs. There is evidence there were a number of services potentially available for J, but because of her complex needs only one was suitable. I understand this is frustrating for Mrs F and J, but, I cannot say it was administrative fault by the Council as it is not required to ensure more than one service is available.
  2. In response to my draft decision, Mrs F said she had not been aware that agreeing for J to attend Provider 1 would result in the EHC plan being ceased. However, there is no fault by the Council here. It notified Mrs F of its intention to cease the EHC plan in May 2018 and she has now appealed to the SEND tribunal about that decision.
  3. Where councils have determined that a person has eligible care and support needs, they must meet those needs. In J’s case the Council agreed she required support five days a week starting from 17 September 2018. One service, Provider 2’s pilot, was found to be able to meet J’s needs, but this was initially only for two days a week due to a lack of staffing and the start date was delayed until October.
  4. This means the Council failed to meet J’s needs from September 2018 until January 2019. Whilst I acknowledge the Council was trying to commission a service for J, this is fault. It has caused injustice to J and to Mrs F as they were affected by the lack of support.
  5. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
  6. I have instead considered the impact on J and Mrs F of missing out on services. I have taken into account that the Council offered direct payments as an alternative, and that Mrs F had been willing to support J during the school holidays.

Agreed action

  1. To remedy the injustice caused, the Council has agreed to, within a month of my final decision:
    • Apologise to Mrs F and pay her £250 to acknowledge the impact on her of failing to meet J's needs
    • Pay J £250 in recognition of the support she missed out on

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Final decision

  1. There was fault by the Council in not meeting J’s needs from September 2018 to January 2019. This caused injustice to J and Mrs F.
  2. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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