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London Borough of Merton (18 000 574)

Category : Adult care services > Transition from childrens services

Decision : Upheld

Decision date : 12 Mar 2019

The Ombudsman's final decision:

Summary: Mrs Y complains about the Council’s lack of transition planning for her son, X, who has recently turned 18. The Ombudsman finds the Council failed to appropriately forward plan for X’s transition into adult services. This is not in accordance with the requirements of the law and guidance. The Council will remedy the injustice this caused with the actions listed at the end of this statement.

The complaint

  1. The complainant, whom I will call Mrs Y, complains the Council has failed to appropriately plan for her son’s transition from children’s to adult’s services. As a result, Mrs Y complains that her son is not receiving the provision required to meet his identified needs.

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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. During my investigation I have:
    • Considered any information submitted by Mrs Y, and discussed the complaint with her by telephone;
    • Made enquiries of the Council and considered its response;
    • Consulted the relevant law and guidance, referenced where relevant in this statement; and
    • Issued a draft decision statement and considered any comments received from Mrs Y and the Council before making a final decision.

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What I found

  1. Councils have a duty to plan for the transition of young people with special educational needs (SEN) into adult services. This is to ensure there are no gaps in the provision of support. At the time of the matters complained about, the Education Act (1996) and the SEN Code of Practice (2001) were the relevant law and guidance.
  2. The Code of Practice set out the steps which all councils should follow when planning for the transition from children to adult services. For young people with a Statement of SEN, the Code says that the planning for transition to adulthood must begin in school year nine:

“The annual review in year 9 and any subsequent annual reviews until the young person leaves school must include the drawing up and subsequent review of a Transition Plan. The Transition Plan should draw together information from a range of individuals within and beyond school in order to plan coherently for the young person’s transition to adult life. Transition Plans when first drawn up in year 9 are not simply about post-school arrangements, they should also plan for on-going school provision, under the statement of SEN as overseen by the LEA”

  1. Once the transition plan is complete, councils should decide and advise the young person which needs are likely to be eligible needs once they have entered adulthood. It should also explain what needs it will not meet. This is to ensure the young person, and if applicable their parents, understand what support they are likely to receive to enable them to plan accordingly. Ultimately councils must ensure there is no sudden gap in meeting eligible needs.

What happened

  1. Mrs Y’s son, whom I will call X, turned 18 in January 2018. X has severe autism, epilepsy and significant learning difficulties. X is now in receipt of an Education Health and Care Plan (EHCP) and previously a Statement of SEN. In addition to attending a specialist school for children with severe learning difficulties, X also received the following provision from Children’s Services:
      1. 52 nights per year of respite at specialist residential provision
      2. three evening sessions per week from 3pm to 8pm at a specialist children’s home, and three days per week during school holidays;
      3. activities at a local charity on alternate Saturdays and during school holidays
  2. The respite provider advised Mrs Y that it would be unable to provide services to X once he turned 18 as it is a provider for children only. The files show that X’s last overnight stay at the respite provider was 18 January 2018. After assessing X’s needs, the Council transferred X to another respite provider. Mrs Y confirms there were no gaps in X’s respite provision.
  3. The file notes show the Council had some difficulty arranging the provision to replace the three evenings per week as per bullet b) above. As an interim measure, the Council arranged for the existing provider to continue supporting X until the end of the academic year. X’s last day at that placement was 20 July 2018. To ensure continuity of provision throughout the school summer holidays, the Council offered some provision between 23 July and 6 August at another provider. X then started at the new provider for school holiday sessions on 6 August 2018.
  4. From September 2018 Mrs Y says that X has not received the three evening sessions he is entitled to during term time. She says this is because the Council has failed to identify a suitable provider. Mrs Y says that X has attended four introductory sessions since September at a prospective provider, but that no permanent provision has yet been arranged for the weekday sessions.
  5. Furthermore, Mrs Y says that X is not receiving the provision as per bullet c) for alternate Saturdays. Mrs Y says the Council initially arranged sessions for Thursdays at a local charity. This replaced the alternate Saturdays. However Mrs Y explains that the arrangement was for four weeks only, and X is now without the alternate Saturday provision (or equivalent) that he is entitled to.
  6. Since complaining to the Ombudsman, X has received a ‘Continuing Healthcare Assessment’ from the NHS. This concluded that the NHS would be responsible for funding X’s support moving forward.
  7. Mrs Y complained to the Council and the Ombudsman because she considers X missed provision he was entitled to prior to the NHS assessment due to poor transition planning by the Council.

Was there fault in the Council’s actions causing injustice to Mrs Y and X?

  1. The Code of Practice is clear that all councils must begin transition planning for young people with Statements of SEN from academic year nine. The Council, without good reason, failed in X’s case to undertake transition planning as per these timescales. This is fault.
  2. The Council conducted an annual review of X’s Statement of SEN on 19 March 2015. At this point X was 15 years old and in academic year ten. The conclusion of that review was: “children’s social care will make a referral for [X] to the transition social worker team once [X] reached the age of 16. A self-assessment will be undertaken at that point along with a ‘step up’ plan so that [X’s] needs post 18 will be identified and planned for”.
  3. The Council then rolled forward the same wording into the following annual review completed on 17 March 2016: “children’s social care will make a referral for [X] to the transition social worker team once [X] reached the age of 16”. However X was already age 16 at this point.
  4. The Council eventually allocated X’s case to its transition team on 16 May 2017, just eight months before X’s 18th birthday. The Council’s panel then discussed X’s case in June. Notes of that meeting show the Council agreed to maintain X’s current provision until September.
  5. The Council then completed its transition assessment for X on 6 September. It concluded that X’s met most of the Care Act outcomes, and therefore had eligible needs. The Council met with Mrs Y in October to discuss X’s transition. Mrs Y made clear that X’s provision should be maintained. The Council explained that its adult social team did not have provision for short-breaks. Mrs Y said this loss would have a significant impact on X.
  6. Between January and June 2018 the Council tried to arrange suitable provision for X. But this was too late because X had already turned 18. While the Council had arranged continuity of some provision until the end of the 2018 academic year, the notes show that X’s alternate Saturday provision came to end in January. From September X did not receive the three weekday sessions he was entitled to.
  7. In order to bridge that gap, the Council says: “in the revised Care and Support plan dated 6 June 2018, Personal Assistant support was identified as a means to meet this need in an alternative setting… the Council’s understanding is that [X] is currently receiving the full range of services”.
  8. I have reviewed the June 2018 support plan. Mrs Y’s views are clear within the plan: “[Mr and Mrs Y] have indicated that they do not wish to use direct payments to employ a personal assistant to support [X]. [Mr and Mrs Y] advised that they have utilised this service in past [sic] and felt it was not effective in meeting [X’s] or the family’s needs as the PA’s/carers were unreliable and unable to appropriately care for [X] out in the community”
  9. Despite this, the Council commissioned a personal assistant (PA) for X. This, it says, was to replace some of the provision X had received previously. Mrs Y says it was not clear what the purpose of the PA was. She had made it very clear to the Council that PA support was not suitable for X as he has very severe learning difficulties. Mrs Y cancelled the PA support in November 2018 because she understood that the PA was only required to assist X to his charity sessions, which had come to an end. The assessment is not person-centred and does not show how the Council reached the view that a PA was appropriate for X, despite Mrs Y’s concerns. Furthermore, the support plan is not clear which of X’s needs the PA was expected to meet.
  10. The support plan was also silent on X’s need for provision during term-time. The plan only refers to respite and non-term time (i.e. school holidays). It is clear from the files I have seen that the Council agreed that X’s needs have not decreased in recent years. It therefore follows that he should be entitled to the same level of provision. However, the Council has struggled to find suitable replacement provision for X once he entered adulthood. But support planning should be based on a person’s assessed eligible needs, not the availability of a service.
  11. In my view, some of the problems the Council faced could have been avoided had it not delayed X’s transition planning. This fault caused injustice to both X and his immediate family. Mrs Y explained to me that the family have regularly stepped in to provide support to X to bridge gaps in his Council funded support. This has inevitably caused the family some avoidable distress. Furthermore, X lost some of the provision he was entitled to as a result of the Council’s poor planning. The Council will remedy that injustice with the following actions.

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Agreed action

  1. Within four weeks of my final decision, the Council will pay:
    • £500 to Mrs Y in recognition of the family’s avoidable distress and time and trouble;
    • £500 to X in recognition of the distress caused by the missed term time provision (three sessions per week since September 2018, and alternate Saturdays since January 2018)
  2. Within twelve weeks of my final decision, the Council will also:
    • Take action to improve its procedures around transition planning. The Council will remind its senior managers and officers of the requirements of the Care Act. The Council could do so either through staff training, or producing a clear process map/procedure for its officers to follow when planning for the transition of a service user into adult social care. The Council will provide evidence to the Ombudsman of the actions it has taken.

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Final decision

  1. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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