Decision : Upheld
Decision date : 02 Mar 2018
The Ombudsman's final decision:
Summary: Ms X complained that the Council failed to provide her son, who has special educational needs, with support to help him prepare for transition to adulthood. The Council has already apologised for delay in carrying out a care needs assessment. This did not cause an injustice as the assessment did not result in any identified care needs. The Council was partly responsible for some delay in providing support with planning following a Tribunal decision. The Council has agreed a remedy.
- Ms X complains that the Council has failed to provide her son who has special educational needs with support to help him prepare for transition to adulthood.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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, sections 26(1), 26A(1) and 34(3), as amended)
- 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)
- 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)
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
How I considered this complaint
- I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on special educational needs. I shared my draft decision with Ms X and the Council and considered their responses.
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
What I found
- A child or young person with special educational needs (SEN) may have an Education, Health and Care Plan (EHC Plan). This sets out the child or young person’s needs and what arrangements should be made to meet them. The Council is responsible for making sure that the arrangements specified in the EHC Plan are put in place. (Children and Families Act 2014 section 42)
- The Ombudsman cannot look at complaints about what is in the EHC Plan, as that is open to appeal to the SEND Tribunal. But we can look at other matters, such as where support set out in a Plan has not been provided or where there have been delays in the process.
- Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ explains what councils should do to help support young people in the transition to life after their college. It says:
- It is important to ensure young people are prepared effectively for adulthood.
- Where it is known that a young person with an EHC Plan will soon be completing their time in education and training, the local authority should use the annual review prior to ceasing the EHC Plan to agree the support and specific steps needed to help the young person to engage with the services and provision they will be accessing once they have left education.
- This transition should be planned with timescales and clear responsibilities and the young person should know what will happen when their EHC plan ceases. During this planning process, the local authority must continue to maintain the young person’s EHC plan as long as the young person needs it and remains in education or training.
- Local authorities should ensure that young people are given clear information about what support they can receive, including information about continuing study in adult or higher education …. when their plan ceases.
Care assessments and support
- Under the Care Act 2014 councils have a duty to assess any person in their area who appears to need care and support because of a physical or a mental condition. The assessment will decide what the person’s ‘eligible needs’ are in relation to a number of areas such as managing and maintaining nutrition, maintaining personal hygiene, and maintaining a habitable home.
- Ms X has a son, Y, now aged 20, who has a diagnosis of autism, Attention Deficit Hyperactivity Disorder (ADHD) and an anxiety disorder. From September 2014 he was attending college, College 1, doing a BTEC level 2 diploma. He had an EHC Plan which provided for 25 hours a week support. One of the outcomes included in the Plan was for Y “to have a successful transition to the new course and develop his social understanding and social communication, including the skills necessary for employment”. There was no social care support included in his EHC Plan.
- Y turned 18 at the end of 2015. Ms X was concerned to ensure that he had support with planning his transition to adulthood, whether in education, employment or training. He would be finishing college in May 2017 if he pursued his diploma to level 3.
- In April 2016 there was an Annual Review of Y’s EHC Plan, which he attended. The meeting agreed to amend the EHC Plan to include an aim for Y to explore areas in employment he was interested in with the help of college tutors, independent supporters and careers advisers.
- Ms X contacted the Adult Social Care service in May 2016 to ask for support for her son. As a result of their discussion the Council treated this as a request to assess Y for the Learning Disability register. The Council advised Ms X that Y would need an up to date psychology report as evidence of a learning disability. It advised her to make contact again when she had obtained a report.
- Ms X contacted Y’s GP who provided a letter in June 2016 confirming Y had high functioning autism and ADHD. The Council considered this letter and clarified it with the GP. It decided Y did not qualify for a service from the Learning Disability team as there was no evidence he had an IQ of less than 70.
- In July 2016 Ms X wrote to the Council to say that she was asking for a social care needs assessment for her son under the Care Act, whereas the Council seemed to be concentrating on whether he had a learning disability. She was particularly concerned about his difficulties with social skills. The Council’s record of the request notes that the previous referral was specifically for recording Y as having a learning disability and there was not enough evidence to be able to do this. It confirmed it would now offer a care needs assessment and it had made a referral to the relevant team.
- The Council allocated the case for the assessment in November 2016. After some discussion about a mutually convenient date with Ms X, the Council offered a visit for the assessment in January 2017. At that point Ms X asked for the assessment to be postponed as Y was experiencing anxiety about a work placement. She wanted to see if the placement would help with his social skills and anxiety. She asked the social care team to call her back in a month’s time to see if she wanted to go ahead with the assessment.
- In the meantime, in July 2016, the Council issued the final EHC Plan for Y, amended following the Annual Review. Ms X appealed to the SEND Tribunal in September 2016, objecting to various parts of the Plan, including the provision relating to support with Y’s independence, self-help skills and preparation for further education or employment.
- The Tribunal hearing took place in November 2016. The Tribunal issued its decision in December. It directed the Council to make various changes to the EHC Plan, including the following:
“[Y] to be supported in planning his next steps following completion of his level 3 course. The College will incorporate transition planning in the needs assessment, to include consideration of employment opportunities and support by a work placement coordinator.”
- Ms X had a meeting with Y and the college in December 2016 to discuss the final EHC Plan and the support the college would be providing. In January 2017 Ms X sent an email to Y’s SEN Case Officer at the Council asking for a transition meeting to consider Y’s next steps after he finished his course in May. The Case Officer replied saying it was not her role to advise Y about his next steps but she could consult any education placements he was interested in. She said she would like more details about what he would like to do and whether he was planning to stay in education “before we plan the meeting.”
- Correspondence continued between Ms X and the Council over the next five months. Ms X referred to discussions Y had had with his Independent Support Worker from a local disability organisation about his options. Ms X said her son would like support with finding out about local employers, further education, training and apprenticeships. The Case Officer suggested he contact the Youth Advice Service. She advised that if Y decided to leave education the Council would need to end his EHC Plan and have a Review meeting first. In late March 2017 the Case Officer confirmed she thought it was a good idea to have a meeting with Y and relevant staff, including careers advisers from the college and the Youth Advice Service to discuss Y’s plans. She asked the college if it would be possible to arrange a meeting. I understand that in April 2017 the Case Officer was in contact with the college about arranging a date for a ‘progression meeting’.
- By 8 May 2017 when no meeting had taken place Ms X wrote to the Case Officer expressing her frustration that the Council had failed to ensure that the support with transition planning set out in Y’s EHC Plan had been provided. She did not receive a reply.
- Ms X also made a formal complaint in mid-15 May 2017 about lack of transition planning since her son was 14 and about failure to put in place the support with transition planning ordered by the Tribunal.
- Following this the Council allocated Y’s case for a social care needs assessment and tried to contact Ms X to arrange a visit.
- A meeting took place on 19 June 2017 at the college with Y, Ms X, the SEN Case Officer, Y’s Independent Support Worker and staff from the college and the Council’s education service. The meeting discussed what Y would like to do next after the end of his level 3 course. He said his preferred options were either employment or an extended diploma with a work placement. The meeting discussed the support he would need. It agreed he would take the extended diploma and explore volunteering opportunities outside college. It was also agreed that there would need to be an Annual Review of Y’s EHC Plan by the middle of July.
- The following day Adult Social Care contacted Ms X about the assessment. The Council’s record of the call says Ms X said Y no longer needed social care services. She said her son was at college and getting on well with support from his Independent Support Worker. The Council advised her she could make a referral again in future if necessary.
- The Council replied to Ms X’s complaint on 30 June 2017. It dealt with the EHC Plan and Adult Social Care issues she had raised. In relation to the EHC Plan, it did not agree it had failed to support Y with planning his transition to his next phase in his education, training or employment. It said Y had undertaken work experience through the college and received information from the Youth Advice Service and the college. It said he was on track to complete his level 3 diploma and could discuss the support he would need to do the extended diploma at his next Annual Review of his EHC Plan in July.
- Regarding the Adult Social Care service, the Council accepted there had been a delay of eight months in responding to her request for an assessment. There was delay in treating it as a referral. The Council then allocated the case to the wrong team. There was a further failure to follow it up when Ms X asked the Council to contact her in a month’s time after deciding to postpone the assessment in January 2017.
- As a result of the complaint the Council said it would:
- improve screening and referral processes within Adult Social Care and Children’s Social Care for referral to the Transition Team;
- arrange an immediate transfer of Y’s case to the Transition Team, who would contact Ms X the following week to discuss an Adult Social Care Assessment and involvement in the ECH Plan review “to support future transition planning.”
- with support Y would ‘deepen his knowledge’ of the area of employment he was interested in and plan for transition after the course within college and with the help of outside careers agencies;
- Y and the college would identify a work placement and provide it with details of his support needs;
- with his progress coach and careers advisor at the college Y would develop a progression plan to support his decision making and transition after finishing the course.
Analysis – was there fault causing injustice?
Adult social care assessment
- The Council has acknowledged there was delay in responding to the referral for a social care assessment for Y. This caused some frustration to Ms X but did not cause significant injustice to Y, as when the assessment was completed it did not result in any identified social care needs. So Y did not miss out on any social care support services as a result of the delay.
- In response to Ms X’s complaint the Council apologised for the shortcomings in its service and the stress this caused. The Council has also explained that it has now developed a Transition Strategy and set up a new process for identifying young people likely to need Adult Social Care services when they turn 18. It has also used Ms X’s experience in training and advice to relevant staff about communication and delays in carrying out needs assessments. In my view the apology and improvements in procedure are a satisfactory way to remedy this part of the complaint.
Transition support under EHC Plan
- The Council had a general duty to support Y with planning his transition to life outside college and to provide clear information about his options. From December 2016 it also had a specific duty to ensure that the provision for transition planning the Tribunal ordered was delivered. It is for the college to deliver the provision set out in an EHC Plan on a day to day basis. But the Council has the ultimate responsibility to ensure it is put in place. The Tribunal ordered the Council to amend the EHC Plan to say that the college should incorporate transition planning in the needs assessment, including considering employment opportunities and support by a work placement coordinator. As the college has staff and funding available to provide this support, and duties to provide careers advice and make reasonable adjustments for disabled students, it is reasonable for the Council to expect it to do so without having to provide day to day monitoring and oversight.
- However when Ms X informed the Council in writing several times over a period of five months from January 2017 that her son was not receiving the support with planning he needed, I consider that the Council should have done more to intervene to ensure the college delivered what was in the Plan. The SEN Case Officer referred to having a meeting to discuss Y’s options for transition and there is evidence that she contacted the college in March, April and June 2017. However given that the end of the academic year was fast approaching in my view the Council should have acted with greater urgency. In the event the first meeting that took place to plan Y’s next steps was in mid-June 2017.
- Based on the information I have obtained, however, I cannot say what impact the delay in holding a meeting to plan for Y’s future had on his future prospects. I do not know whether he would have made different decisions if he had more guidance and information earlier. The college was partly responsible for the delay as well. I cannot consider a complaint about the college’s role in Y’s decision to give up the course by failing to identify a suitable placement, or about lack of careers advice. Nevertheless in my view the Council contributed to Y missing an opportunity to plan his future during his final term in college.
- Ms X experienced frustration and had to put time and effort into contacting the Council to get a meeting arranged and into pursuing her complaint.
- The Council has agreed to my recommendation that within one month of the final decision on this complaint it should:
- apologise to Ms X and Y for not doing more to ensure the college provided support with transition planning after the Tribunal decision in December 2016;
- pay Ms X £200 to recognise her frustration and time and trouble;
- pay Y £200 to recognise his lost opportunity to have an earlier meeting to discuss his options.
- I find that there was some fault by the Council in the way it responded to Ms X’s reports of a lack of transition planning for her son at college. It should have done more to ensure the college provided support with transition planning as required in his EHC Plan. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman