Decision : Upheld
Decision date : 14 Nov 2018
The Ombudsman's final decision:
Summary: The complainant says that the Council has delayed in making appropriate arrangements for the transition of her disabled child to adult services. This has caused avoidable distress because there has been no overnight respite care for the past 16 months. The Ombudsman finds fault causing injustice and has recommended a way to resolve the complaint.
- The complainant, who I shall refer to as Ms X, is complaining on behalf of her disabled adult son, Mr Y, and in her own right. Her complaints are that;
- The Council delayed in transferring her son’s Statement of Special Educational Needs to an Education, Health and Care (EHC) Plan;
- The Council delayed in making appropriate transitional arrangements to adult social care and delayed in finding appropriate respite care since Mr Y became 18 in June 2017; and
- The Council’s previous social worker acted inappropriately.
What I have considered
- The Ombudsman is looking at the delays in the EHC Plan and transitional arrangements to Adult Services. Matters which the Ombudsman cannot investigate are set out in the last paragraph of this statement.
- 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)
- 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)
How I considered this complaint
- I have spoken on the telephone to Mrs X and received the Council’s comments. When making my initial enquiries, I asked the Council to consider as a matter of urgency Ms X’s predicament in that she had been without suitable respite care since Mr Y became 18.
- I issued two draft decision statements and have considered the Council and Ms X’s additional comments when reaching the final decision.
- 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
- The Children and Families Act 2014 (the Act) changed the way councils should assess and provide for a child’s special educational needs. Accompanying the Act, is the Special Educational Needs Code of Practice 2015 (the Code) and the Special Educational Needs and Disabilities Regulations 2014 (‘Regulations’). These contain detailed guidance to councils about how they should manage the assessment process.
- Councils are expected to have a conversion plan available on their website. Every child or young person with a Statement must undergo an EHC needs assessment before they can obtain an EHC plan. A council can use an existing piece of evidence as part of the EHC needs assessment if all parties agree to this. If not, the council must seek new advice.
- Councils should complete assessments and issue an EHC Plan within 20 weeks from receiving the request. In respect of the transfer from a Statement to an EHC Plan, where a council considers it is necessary for SEN provision to be made in accordance with an EHC Plan, it must send the final Plan within 18 weeks of the day notice was given that the process had started. Government guidance is that all Statements should be converted to an EHC Plan by April 2018.
- The requirements for the transfer for post 16, and further education, is that provision must be named by 31 March of the year the young person transfers to a new setting. Councils are not obliged to provide exactly what each parent requests, but they should ensure that parents are involved properly in the decision making and be able to explain clearly why they consider a suggested provision meets the assessed needs of any individual child. They must also take steps to ensure that the views of the child or young person are properly recorded and considered when planning provision for them.
- If a parent/carer is dissatisfied with the education aspect of a final EHC Plan, or the council refuses to issue such a plan, they must persuade mediation and the council must complete this within 30 days. Parents/carers can also ask for mediation if dissatisfied with the health or social care plan.
- The first tier of the Special Educational Needs and Disability Tribunal (SENDIST) deals with disputes about assessments and provision for special educational needs. This means the Ombudsman cannot normally look at a council’s decisions not to carry out an assessment or provide an EHC Plan. Once SENDIST has made an order the council must comply and time scales apply. Where the order is to amend a statement or EHC Plan, the Council must do so within five weeks.
- Even if a complainant is appealing against the provision specified in the EHC Plan or the named placement, the council still has a duty to provide the support specified during that period.
Transition assessments for young people with EHC plans
- The Special Education Needs Code of Practice (the Code) says a local authority should ensure that the transition to adult care and support is well planned, is integrated with the annual reviews of the EHC plans and reflects existing special educational and health provision that is in place to help the young person prepare for adulthood.
- For those with a Statement or EHC Plan, transition planning should start in year 9. Preparation for adulthood involves assessing how the needs of the young person has changed but also how carers’ needs might change. There is a specific duty under the Care Act 2014 to carry out a ‘child needs assessment where there is a likely need for care and support once the young person becomes 18. Carer’s needs should also be assessed and consideration given to whether additional support is required to support a carer’s employment (Care and Support Statutory Guidance 2014, paragraph 16.21).
- The SEN Code sets out the importance of providing a full package of provision and support across education, health and care for young people to meet their needs with an EHC Plan that covers five days per week.
- Assessments for adult care and support must consider:
- Current needs for care and support
- Whether the young person is likely to have needs for care and support after they turn 18, and
- If so, what those needs are likely to be and which are likely to be eligible needs.
Care Act Assessments
- The Care and Support (Eligibility Criteria) Regulations 2014 set out the eligibility threshold for adults with care and support needs. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. To have needs, which are eligible for support, the following must apply:
- the needs must arise from or be related to a physical or mental impairment or illness; and
- because of these needs, the adult must be unable to achieve two or more of the following outcomes:
- managing and maintaining nutrition;
- maintaining personal hygiene;
- managing toilet needs;
- being appropriately clothed;
- being able to make use of the adult’s home safely;
- maintaining a habitable home environment;
- developing and maintaining family or other personal relationships;
- accessing and engaging in work, training, education or volunteering;
- making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
- carrying out any caring responsibilities the adult has for a child.
- To be eligible for support, not achieving those outcomes must be likely to have a significant impact on the adult’s well-being.
- Where the Council decides a person has eligible needs, it must meet these needs. When the Council decides a person is or is not eligible for support it must provide the person with a copy of its decision.
- The Council must provide a care and support plan which considers:
- What the person has
- What they want to achieve
- What they can do by themselves or with existing support
- What care and support may be available in the local area.
Facts of this case
- Mr Y has significant physical and health needs and has a learning disability and is autistic. He also has frequent epileptic seizures which has meant constant trips to hospital and adherence to a medication regime to control the seizures.
- Mr Y uses a wheelchair and communicates through signs. He is dependent on adults for all his personal and support needs. He can be aggressive particularly when he becomes frustrated that his needs are not being met. Mr Y sleeps downstairs and often has disturbed nights.
- Ms X has cared for Mr Y as a single parent since she separated from Mr Y’s father. Mr Y was aged 7 at this time.
- Mr Y attended a special school until July 2018. Ms X took him to school herself because his seizures meant that her son woke up at varying times and, after a seizure, it was best to let him sleep. Ms X cannot work because of her caring responsibilities. She has a mortgage and a loan on her property.
- In March 2015, the Council’s Children Services agreed that she should have 6 nights overnight respite care per month, in total 72 days per year, plus her direct payments for caring for Mr Y at home. The children services’ respite centre only caters for children under 18. This arrangement worked well although there was a safeguarding issue.
- Mr Y’s last residential respite stay at the Children’s respite centre was on 10 June 2017.
Complaint (1): Transfer of Mr Y’s Statement to an EHC Plan
- Mr Y remained at his special day school until July 2018. Ms X appealed the Plan and a Tribunal hearing was set for October 2018.
- It appeared from the documents that the Council began the process for Mr Y in July 2017, requesting health reports. But the Council says that this was a multi-agency meeting discussing the transition of young people generally. The Council says that the conversion process started on 7 November 2017. A first draft EHC Plan was issued in February 2018. On 7 March 2018, a second draft was issued. The Council issued a final Plan on 27 March 2018.
- Ms X says that the final Plan was issued despite her representations that it was incomplete and full of errors.
- The Council considers that there has been no delay in finalising the EHC Plan. Further, the transfer for post 16, and further education provision, is 31 March of the year the young person moves to a new setting. The Council issued the final EHC Plan on 27 March and therefore met this deadline.
- The Council has now agreed a 38 week residential placement for Mr Y and he was recently placed there. This is a significant step forward and will resolve many of the previous problems for Ms X in the future and provide her with much needed respite. It is hoped that the residential placement will be for three years.
- I do not find fault in that the Council has not delayed unduly in issuing the final EHC Plan. It would have been better if the Council had considered Ms X’s corrections and representations before issuing the final Plan. But Ms X’s appeal to the Tribunal is the forum to deal with such matters.
Complaint (2): Transitional arrangements from children to adult services
- Mr Y was 18 in June 2017. The Council appointed a Social Worker (Social Worker 1) in September 2016 for the purposes of making plans for Mr Y’s transition to adult services. Social Worker 1 met Mrs X and Mr Y in December 2016, he had a meeting with the father in February 2017 and completed his needs assessment on 22 May 2017.
- Ms X says that the needs assessment was full of errors. Social Worker 1 also passed on confidential information to Mr Y’s father and made inappropriate remarks to her. This is part of Ms X’s third complaint which has been upheld by the Council.
- Ms X was not shown the needs assessment before it was considered by the Council’s Funding Panel which makes decisions about care packages and funding.
- On 2 June 2017, the Council’s Panel considered the needs assessment and care package. The Council awarded 30 minutes care, morning and evening, a budget for 3 days of support per week during the school holidays and 28 days residential respite care. The Council says that this was based on the needs assessment completed by Social Worker 1. There was no explanation recorded on the Panel’s minutes for the care package decision. It was substantially less than what Ms X had been receiving from Children Services.
- In June 2017, Ms X complained about the lack of proper planning and assessment for when Mr Y became 18. She said that she was told she would receive only 28 days respite care because the NHS would provide continuing healthcare to enable her to have more respite care. However, the Council had not made the referral for continuing health care.
- Ms X said that Mr Y’s first respite care at the Council’s Adult Respite Centre was booked for 23 July 2017. But, because of the delays in the transitional process, the Centre had no availability until September 2017.
- The Council explained that the needs assessment had been presented to Panel, without Ms X or her ex-partner seeing this, because Social Worker 1 was anxious to ensure an adult package was agreed. Ms X says that the care package was subsequently reduced to 24 days respite.
- Ms X was not satisfied with the Stage 1 complaint response from the Council. She said that her needs, as a single parent carer, had not been considered, that the care package was insufficient and less than what had been available in Children Services.
- A new Social Worker, who I shall refer to as Social Worker 2, was allocated the case.
- Ms X tried the Council’s Adult Respite Centre which had been offered to her. However, she had concerns about the Centre’s ability to manage Mr Y’s complex needs. One time she arrived to pick up Mr Y to find he had been locked in his room, he had not had his medication and his nappy had not been changed. Ms X decided that the Adult Respite Centre could not cope with Mr Y’s complex needs and epilepsy.
- Ms X’s allegation about poor care was dealt with by the Council’s Quality and Compliance Team. The Manager of the Adult Respite Centre was asked to make immediate changes. There was a meeting with Ms X, after this, and plans were made to try to arrange more respite at the Centre. However, Ms X considered she could not risk Mr Y attending. She also says that the Centre was not suitability for Mr Y’s mobility needs.
- Social Worker 2’s assessment was completed in October 2017. It concluded that, in all areas, Mr Y’s needs were high and would cause a significant impact on his wellbeing. The care package was increased from 24 to 36 respite nights. Social Worker 2 noted that a NHS continuing care assessment was still required.
- Ms X has received a personal budget of £650 per week. She arranged carers to come to the house. Mr Y attended a day centre between 12 and 4 pm although it could have attended earlier in the day. However, because of Mr Y’s seizures, he often did not wake until midday and Ms X had been advised to let Mr Y wake up naturally.
- Ms X has had to provide additional activities for Mr Y. She says that he became bored and frustrated without activities and his behaviours more challenging.
- Ms X has had no respite residential care, besides a few nights at the Council’s Adult Respite Centre. Mr Y is also a poor sleeper and this has put an enormous strain on Ms X, over the past year, in addition to the everyday strain of caring for Mr Y.
- Ms X had to agree for her ex-partner to have Mr Y to stay overnight with him, once a week, with the help of a carer. Without this, Ms X would have had considerable problems in sustaining her caring obligations.
- Ms X says that the Council has very little adult respite residential care provision which the Council accepts. The Council referred to three other independent provider possibilities but all options were out of area. One had also closed and the other could not manage Mr Y’s epilepsy.
- The third respite option assessed Mr Y and Ms X considered this might have been a suitable option. But it was some distance from home and it only had one respite bed; the rest were for those living permanently at the home. Ms X says that this offer of respite came too late because she did not consider it was appropriate to try Mr Y at a new respite centre when he was due to start at a new residential school placement in the near future.
- Ms X also said that the Council pays different rates, under the direct payment scheme, for residential respite in a care home, compared to the rates if carers pay for staff to sleep in at a resident’s home. However, I believe that this matter has now been resolved. Further, in June 2018, the Council offered a top up fee of £505 per week and said that Ms X was free to use the direct payments flexibly to meet Mr Y’s needs.
- I find that there has been delay by the Council in making the transitional arrangements for Mr Y from Children to Adult Services and this amounts to fault. This has resulted in injustice because of the delay in finding appropriate residential respite care since June 2017. This has had a significant negative impact on Ms X and, she believes, on Mr Y, as well. Ms X recognises that there is very little provision suitable for Mr Y in Adult Services. But this would be a reason for the Council to have started the planning process well in advance.
- The Council has accepted that it did not start soon enough in making preparations for Mr Y’s transfer to Adult Services. The Council apologises for the repercussions caused by this omission.
Complaint (3): Unprofessional conduct by Social Worker 1
- The Council has completed its assessment and upheld Ms X’s complaint that Social Worker 1 acted inappropriately. This involved the Social Worker making inappropriate comments. While there were no witnesses, and Social Worker 1 denied the allegations, the Council upheld the complaint because there had been another similar complaint.
- In addition, the Council considered Social Worker 1 had inappropriately supported Ms X’s ex-partner to make an application to become Deputy for Mr Y’s finances.
- The Council apologised to Ms X and said that it would be providing further training to staff, using Ms X’s complaint in an anonymised case study to improve service delivery. Social Worker 1 no longer works for the Council. The Council will refer him to his professional social work body, the Health and Care Professional Council (HCPC).
- I find fault causing injustice but I accept that the Council has dealt with this matter promptly and appropriately.
- The Council has accepted that it failed to make appropriate arrangements for Mr Y’s transition to adult services in good time and it has not abided by the required legislation and guidance. This primarily affected the social care package for Mr Y and the support which Ms X should have received as the main carer.
- On the balance of probability, had the transitional planning started sooner, it should have been possible for the Council to have found an appropriate residential respite centre for Mr Y in advance of him becoming 18. This would have meant that Mr Y and Ms X would have had this important provision.
- It also appears that there was some assumption, without a prior assessment, that the Council’s own residential Adult Respite Centre would be suitable for Mr Y.
- Remedying Ms X and Mr Y’s injustice is difficult given Ms X has been without respite for nearly 16 months and she has had to care for her son, who has significant needs, with less breaks than before.
- Where there has been avoidable distress, the Ombudsman’s recommendation to remedy such injustice is symbolic and payments are normally between £300 to £1,000 depending on the severity of the injustice. In this case, I am satisfied that Ms X’s avoidable distress is severe.
- After Ms X made her complaint to the Ombudsman, I accept that the Council did recognise its errors and tried to find a suitable respite centre. But, its actions came too late.
- The Council should within two months of the date of the final statement;
- apologise in writing to Ms X;
- pay £2,500 to Ms X for her avoidable distress and for the loss of a respite service to Mr Y;
- refer Social Worker 1 to the HCPC;
- consider the arrangements it has for transferring children with complex needs to Adult Services. Planning needs to start well in advance to prevent the problems in this case recurring. The Council should provide written information to the Ombudsman about its proposed changes to its procedures.
- There has been fault by the Council causing injustice. The Council has accepted the recommended settlement of this complaint and therefore I have completed my investigation and I am closing the complaint.
Parts of the complaint that I did not investigate
- The Ombudsman cannot look at complaints about educational options as complainants have a right of appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman