Summary: Mr & Mrs X complain about the way the Council planned their disabled son’s transition from children to adult services and related matters. The complaint is upheld. There was fault causing injustice and the Council has agreed to provide a suitable remedy.

The complaint

1. The complainants, whom I shall refer to as Mr & Mrs X, made this complaint on behalf of their adult disabled son, Mr Y, and in their own right. They complain that the Council failed to plan their son’s transition from his residential educational placement to a suitable adult social care placement in a timely and orderly way. It failed to fully engage and communicate with them during the transition planning process. It did not properly handle a dispute between them, as their son’s legal deputies, and officers about the suitability of a proposed adult social care placement. It proceeded with the move against their wishes and without making a best interests decision.
2. They also have concerns about the lack of suitable support arranged for their son following his move to the new placement, the delay in carrying out a Deprivation of Liberty safeguards assessment, and the Council’s response to an incident at the new placement involving Mrs X.
3. Mr Y does not have capacity to make decisions. Mr & Mrs X are his joint legal deputies and make decisions on matters relating to his health, welfare and financial affairs.
4. Mr & Mrs X say the Council’s failings in planning Mr Y’s transition, and the poor communication and engagement with them during the process, caused severe distress to them, Mr Y and other members of their family.

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What I have investigated

5. I have investigated the complaint apart from the matter in paragraphs 110 and 111 which was the subject of legal proceedings.

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The Ombudsman’s role and powers

6. 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)
7. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised to act for him or her. If the person cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (section 26A or 34C, Local Government Act 1974)
    
8. The Local Government Act 1974 sets out our powers but it also imposes restrictions on what we can investigate.
9. We cannot investigate a complaint if someone has started court action about the matter. This restriction applies even when the person withdraws an application before a Court hearing. (Local Government Act 1974, section 26(6)(c), as amended)
10. The Ombudsman generally expects parents to use (or have used) their statutory right of appeal to the Special Educational Needs & Disability Tribunal (SENDIST) if they disagree with a council’s decision to cease to maintain a young person’s Education, Health & Care Plan (“EHC Plan”). It is open to parents to ask SENDIST to name a specific educational placement in the EHC Plan if a council refuses to do so.
11. 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

12. I have spoken to Mrs X and considered all the evidence she and Mr X sent me. I considered the Council’s response to my enquiries and relevant documents from Mr Y’s case records. I have also considered the Council’s policy and practice guidance on transition planning.
13. I invited Mr & Mrs X and the Council to comment on two versions of my draft decision. I considered their comments before making a final decision.

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What I found

The background to this complaint

14. At the time of these events, Mr Y was 19 and 20 years old. He has severe autism, global development delay and severe learning difficulties. He is non-verbal, has severe communication difficulties and multi-sensory impairment. He also has epileptic seizures. He has no awareness or understanding of danger and needs continuous supervision to keep him safe. He is a very vulnerable young man.
15. At the start of the events in this complaint, Mr Y had an EHC Plan. He had been placed in specialist residential schools since the age of seven. In September 2015, when Mr Y was 17, the Council placed him in School A. It is an independent specialist school catering for children between the ages of 5 and 19 with complex and severe learning difficulties. The individual placement agreement signed by School A and the Council then said Mr Y’s placement would terminate at the end of the academic year following his 19th birthday.
16. In Y’s first year, the placement was for 48 weeks. At Mr & Mrs X’s request, the Council extended it to 52 weeks in the second year. Mr & Mrs X understood the contract between the Council and the school provided for the placement to continue until September 2017.
17. Two Council services were responsible for assessing Y’s social care and educational needs in the period covered by this complaint: the Transitions service and the Inclusion Special Educational Needs and Disability (ISEND) service.

The relevant law and statutory guidance – transition planning and the decision to cease to maintain a EHC Plan

18. The Council has a duty under the Care Act 2014 to assess the social care needs of an adult over the age of 18.
19. The statutory Care Act guidance includes a chapter on transition from children’s social care to adult social care. Transition planning should start in year 9. It sets out what councils must do as the young person approaches the age of 18. Where the young person already has an assessment, the council must advise him and his parents whether he is likely to meet the eligibility criteria for adult services.
20. When the young person becomes 18 the council must decide whether to treat the existing Section 17 child in need assessment as an adult needs assessment. In that case, the LA must continue to comply with the assessment after the young person’s 18th birthday.
21. If the council is likely to continue to need support over the age of 18, it must carry out an adult social care needs assessment.  The aim is for the council to make provision in accordance with an existing assessment and so avoid a cliff edge at the age of 18 when services might otherwise cease.
22. Throughout the transition period, the council must work in close cooperation with the young person, his or her family and relevant professionals.  A named worker should be appointed to act as a link and coordinate planning. The timing of the transition assessment is flexible to take account of the young person’s needs and circumstances. The Council can combine the transition assessment with other assessments providing all the parties agree.
23. The Special Educational 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 annual reviews of the EHC plan and reflects existing special educational and health provision that is in place to help the young person prepare for adulthood. Guidance issued by the National Institute for Health and Care Excellence (NICE) issued in February 2016 reinforces these points and underlines the need for planning to start early.
24. When it considers whether a young person aged 19 or over no longer needs the special educational provision specified in the EHC plan, a local authority must take account of whether the education or training outcomes specified in the EHC plan have been achieved.
25. When a local authority is considering whether to cease to maintain a young person’s EHC plan it must:
• Inform the young person (or their representative) that it is considering this option;
• Consult the young person (or their representative) and the school named in the EHC plan.
26. If the local authority decides, following the consultation, to cease to maintain the EHC plan, it must notify the young person (or their representative) and the school. It must also notify the young person (or their representative) of the right of appeal to SENDIST and the requirement to consider mediation if they wish to appeal.

The Council’s Transitions Service

27. The Transition Service is for young people aged 16 to 25 years old who have special educational needs and who are eligible for support from adult social care. Practitioners in the service aim to support young people with complex needs, and their families, as they move from the Children’s Disability service to Adult services. They coordinate assessment and support between education, health and social care services and provide a single point of contact.
28. Adult Social Care funds the support for young people from the age of 19 who are still in education or from the age of 18 if they are not in education. A joint Panel of officers from ISEND and Adult Social Care consider funding for post-16 placements with independent specialist providers.

Court appointed deputies and best interests decision-making

29. When someone lacks the mental capacity to make their own decisions, and there is a need for continuing decision-making powers, the Court of Protection may appoint a deputy or deputies to make decisions on their behalf.
30. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of, a person who lacks capacity must be in that person’s best interests.
31. Section 4 of the Act provides a checklist of steps that decision-makers must follow to determine what is in a person’s best interests. If there is a conflict about what is in the person’s best interests, and all efforts to resolve the dispute fail, the Court of Protection may need to make the decision.

The Deprivation of Liberty Safeguards (DoLS)

32. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS regime protects people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to get authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful.
33. The Supreme Court decided on 19 March 2014, in the case of P v Cheshire West and Chester Council and another and P and Q v Surrey County Council, that deprivation of liberty occurs when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
34. In response to the increased demand for DoLS assessments following the Supreme Court judgment, the Association of Directors of Adult Social Services in England (ADASS) published a screening tool to help councils prioritise DoLS requests. ADASS’s introduction to the guidance cautions that the “use of this tool must be balanced against the legal criteria for the Deprivation of Liberty Safeguards which remains unchanged”. The tool suggests criteria for prioritising requests into ‘higher’, ‘medium’ and ‘lower’ priorities.
35. Once there is, or is likely to be, a deprivation of liberty it must be authorised under the DoLS scheme.
36. The ‘managing authority’ of the care home (the person registered or required to be registered by statute) must request authorisation from the ‘supervisory body’ (the local authority). There must be a request and an authorisation before a person is lawfully deprived of his or her liberty. Although it is the managing authority’s responsibility to seek authorisation, the DoLs Code is clear that “if a healthcare or social care professional thinks that an authorisation is needed, they should inform the managing authority.”
37. There are two types of authorisation: standard authorisations and urgent authorisations. Standard authorisations are made by the local authority.

The key events in this complaint

38. In late December 2016 Mr X replied to an email enquiry from Officer B, Mr Y’s case officer in ISEND, about his preferences for Mr Y’s placement after July 2017. Mr X expressed an interest in College A, a residential and day college for students aged 19-25 who have autism, epilepsy and other neurological conditions or special needs. He told Officer B that College A was due to assess Mr Y to decide whether it could offer him a placement.
39. On 10 February 2017 Officer A, Mr Y’s social worker in the Transitions service, separately contacted Mrs X to ask for her views on a placement for Mr Y from the end of the academic year. She needed to update Y’s core assessment and asked Mrs X to propose any amendments. Mrs X confirmed they were interested in Mr Y moving to College A. Mrs X said she understood Mr Y’s placement at School A was due to continue until September 2017.
40. Officer A said she would check the contract with School A and the date when Mr Y’s placement would end. She told Mrs X that, due to safeguarding concerns, the Council was not approving any new placements at College A for at least two months.
41. College A met Mr Y and Mr & Mrs X and completed a multi-disciplinary assessment in late February 2017. On 20 March College A confirmed to Mr & Mrs X that they could meet Mr Y’s needs and offered a 52 week residential placement from September 2017 subject to funding being approved.
42. The Council says College A did not inform ISEND about this offer until 22 May following a reminder. However, in response to the first draft decision, Mr & Mrs X sent me a copy of College A’s offer letter of 20 March 2017. It says College A sent a copy of the letter to Officer A in the Transitions team. Mr X confirmed acceptance of the offer. He says he also telephoned Officer B around this time to inform her of their decision.
43. On 28 March 2017 Officer A told Mrs X the restriction on new placements at College A had been lifted. But there was an ongoing safeguarding enquiry and a police investigation regarding children’s services on the site. Another local authority was conducting the safeguarding investigation. According to Officer A’s notes, Mrs X said she was confused about what to do. Officer A suggested Mrs X should explore other potential placements and Mrs X agreed.
44. On 13 April 2017 Mrs X contacted Officer A to ask when Mr Y would have to leave School A. The date had still not been confirmed. She and Mr X had visited some residential care homes and asked Officer A to suggest other suitable provision.
45. Officer A said Mr Y’s leaving date could be flexible provided the Council gave School A the required notice. She agreed to check this with the Council’s specialist placements team.
46. On 27 April Mrs X sent Officer A an email. She said a senior member of staff at School A had informed her Mr Y’s last day would be 21 July. The school was not willing to be flexible about the leaving date. She voiced her concern that this left very little time to plan Mr Y’s move and ensure his needs were met.
47. On 2 May College A wrote to Officer A to confirm it had assessed Mr Y and confirmed his suitability for a placement. It said it would not allocate or reserve a place until it received written confirmation of funding and Mr Y’s final EHC Plan. It included the costings for a 52 week placement. The letter says a copy of Mr Y’s assessment report was enclosed.
48. On 3 May 2017 Officer A spoke to a senior staff member at School A to ask whether both the education and care elements of Y’s placement would end on 21 July. He confirmed Mr Y’s placement must end on 21 July because of staffing issues. The school would close then for the summer holidays.
49. The Council’s contract with School A says the school must give at least six weeks’ notice in writing if it wishes to terminate a student’s placement. I have seen no evidence that the School gave the Council written notice – the only relevant record is the telephone conversation between a staff member at School A and Officer A on 3 May. The Council has confirmed it can find no evidence that the school gave it written notice.
50. The contract between the Council and School A allows either party to terminate the placement by giving the required notice. So, the Council could not compel School A to extend Mr Y’s educational placement beyond 21 July if the school wished to terminate it.
51. Mr X made the point that School A also operated a registered children’s home on the same site. Mr Y had spent school holidays in one of the children’s home units which remained open 52 weeks a year. Mr X considers the Council should have explored the option of Mr Y remaining in one of these units after his educational placement ended on 21 July. However, School A did not offer to accommodate Mr Y in one of the children’s homes units on the site over the summer holidays when a staff member spoke to Officer A on 3 May. It was made clear that both the education and social care components of Mr Y’s placement would end on the same day.
52. On 18 May an officer in the Specialist Placements team sent Officer A details of a social care provider who would contact her and Mrs X to arrange an assessment of Mr Y’s needs. She would send details of other potentially suitable adult social care homes the following week.
53. On 19 May Mr X sent an email to Officer B asking when their request for a placement at College A would be presented to the Panel. On 22 May there was a further exchange of emails between Mr X and Officer B. He confirmed they had looked at another potential educational placement but it had no places available. He confirmed they wanted Officer B to present their request for Mr Y to move to a residential placement at College A to the Joint Assessment Panel. On the same day, the Council issued a new final EHCP. It said Mr Y’s placement at School A would run until the end of July 2017. It did not indicate what provision, if any, would be made after that date.
54. On 25 May Officer A sent Mrs X details of three care providers that might be able to offer Mr Y a placement. One service was not due to open until mid-July 2017. Mr & Mrs X visited the two existing services but they did not have any vacancies.
55. On 8 June, an urgent transition planning meeting was held at School A. Mr & Mrs X say the meeting was arranged at the school’s request due to its concerns about the lack of transition planning for Mr Y. Mr & Mrs X attended along with Officer A, Officer B (who joined by telephone) and staff from School A. The Council had not considered any other educational providers. Officer A said it was unlikely the Council would agree to fund further education for Y. In the meeting, Mr & Mrs X expressed their concern about the delay in arranging the meeting. Officer A agreed to investigate a potential care provider Mrs X suggested.
56. On 15 June an officer in the Specialist Placement team informed Officer A that Care Provider 2 was the only viable option. Care Provider 2 is a care home for adults with a learning disability and complex care needs. Some residents are permanent and others use the service for short stays.
57. On 20 June Mr & Mrs X were appointed as joint legal deputies for Y by the Court of Protection. The Court authorised Mr & Mrs X to make personal welfare decisions on behalf of Y including:
• where he should live;
• with whom he should live;
• arrangements for the provision of care services.
58. On 21 June Officer A’s manager instructed her to seek approval from the funding panel for Mr Y to move to Care Provider 2. This was due to the lack of alternative options and to prevent Mr Y being made homeless on 21 July. The placement would be subject to a review after six weeks. Officer A informed Mrs X of this decision on the same day. Mrs X said she would agree in principle provided it was clear this would be a short-term placement and Mr Y would later move to Mr & Mrs X’s preferred long term placement.
59. On 23 June Officer B completed a report for the Joint Assessment Panel. She explained that Mr & Mrs X wanted the Panel to formally consider their request for a placement at College A. It included the annual comparative costs of a placement at College A and in an adult social care setting.
60. On 3 July Mr X contacted Officer A to say they had visited Care Provider 2 again and had significant concerns about its suitability for Mr Y. They did not consider it would meet his needs. He also informed her that another provider – Care Provider 4 – had offered Mr Y an adult social care placement at a new provision. Mr & Mrs Y felt this provision would fully meet Mr Y’s needs if their request for a placement at College A was refused. However, they were aware that Care Provider 4’s new provision would not open by 21 July. They therefore accepted Mr Y would need an interim placement.
61. Officer A replied on 4 July. She said Care Provider 3 had no current vacancies so it was not an option for Mr Y. She confirmed the Joint Assessment Panel would make a decision on a placement at College A on 10 July. Meanwhile she would continue looking for adult social care placements in parallel in case the Panel did not agree to place Mr Y at College A. She said the placement with Care Provider 2 was not intended to be temporary and it would continue if Mr Y had settled there at the time of the six week review. She said:

“We need to begin transition planning now to support a smooth transition for [Mr Y]”.

62. On 4 July Mr X sent an email to Officer A stating the reasons why he did not consider Care Provider 2 would meet Mr Y’s needs.
63. On 7 July Officer A called Mrs X with an update. The Council’s plan was to move Mr Y to Care Provider 1 on 21 July and then move him to Care Provider 2 from 4 August. She said Mr & Mrs X’s preferred adult social care placement – with Care Provider 3 – was still under construction and was not likely to be open until November 2017.
64. On 10 July 2017 the Joint Assessment Panel considered Officer B’s report. It refused the request for a placement for Mr Y at College A. It also decided to cease to maintain Mr Y’s EHCP. The Panel considered Y had met all the specified outcomes in the Plan so there was no longer a need to maintain it. The Panel noted that the Transitions service had completed an adult core assessment for Mr Y and offered a residential care package.
65. On 13 July 2017 the Council informed Mr & Mrs X of the Panel’s decision. They strongly disagreed with it. They say there was no evidence to support the Panel’s statement that Y had achieved all the specified outcomes in the Plan. They still wanted Mr Y to transfer to College A. However, they did not appeal to SENDIST to challenge the Council’s decision to cease to maintain Y’s Plan. Mrs X said they had to focus their efforts on finding a suitable adult social care placement for Mr Y because his placement at School A was about to end.
66. On 13 July the Council agreed in advance to fund a placement for Mr Y at the new provision which Care Provider 4 was building. But it would not be ready before 21 July so an interim placement was still necessary.
67. Mr Y’s adult core assessment was reviewed and updated on 21 June 2017 and 16 July 2017. It includes a detailed description of his eligible social care needs.
68. On 18 July Officer A sent a copy of Mr Y’s core assessment and care and support plan by email to Care Provider 1. Her notes say the care provider had drawn up a basic care plan for Mr Y.
69. On 18 July Officer A contacted the Council’s Legal Service to seek advice about the end of Mr Y’s placement at School A. She was informed that if Mr Y’s placement at School A could not continue, and Mr & Mrs X did not accept the decision, it may be necessary to make an application to the Court of Protection for a welfare declaration about Y’s place of residence. The solicitor hoped this could be avoided by working closely with Mr & Mrs X.
70. On 19 July 2017 Officer B wrote to Mr & Mrs X to confirm the Joint Assessment Panel’s decision to:
• cease to maintain Mr Y’s EHC Plan in two months’ time; and
• refuse their request for a placement at College A.

One of the letters gave information about their right to mediation or to appeal to SENDIST against the decision.

71. Mr & Mrs X attended an emergency transition planning meeting on 20 July, the day before Mr Y’s placement at School A was due to end. The purpose of the meeting was to try to reach agreement about Mr Y’s move from School A to an adult social care placement. The Council proposed Mr Y should move on an interim basis to Care Provider 1 on 21 July. This was a respite care home for adults with learning disabilities. He should then move to Care Provider 2 when a place became available on 4 August.
72. Mr & Mrs X did not consider either of these placements would meet Mr Y’s needs. They made it clear that they objected to Mr Y being moved to Care Provider 1. Mr X said the Council would be acting unlawfully if it moved Mr Y from School A to Care Provider 1 without their consent as Y’s legal deputies. They did not consider the move was in Mr Y’s best interests. During the meeting, Care Provider 2 withdrew its offer of a place.
73. The Council could have applied to the Court of Protection for a declaration when they could not reach agreement with Mr & Mrs X on Mr Y’s placement. In the event Mr & Mrs X gave officers written notice in the meeting that they would be making an urgent application to the Court of Protection.

Mr Y moves to Care Provider 1

74. School A closed for the summer holidays at lunchtime on 21 July. Mr X had made an application to the Court of Protection on 20 July for an urgent interim order to prevent Mr Y being moved from School A. Mrs X contacted School A and the Council on the morning of 21 July.
75. The manager of the Transitions team requested urgent advice from the Council’s legal service. After getting the advice, she contacted School A to say they should not move Mr Y until the Court’s decision was known. But, in the event, when the school had not received directions from the Court by lunchtime, it took its own legal advice and decided to move Mr Y to Care Provider 1 that afternoon. I understand staff from School A accompanied Mr Y and stayed with him for a few hours to help him settle in.

Incidents involving Mr & Mrs X in September 2017

76. On 5 September 2017 Mrs X visited Mr Y at Care Provider 1. According to the care provider’s records, she asked to speak to a staff member. The staff member took her to a private room. The records say Mrs X became very upset and tearful. She expressed her opinion that the care provider could not meet Mr Y’s needs. She felt his needs would be better met by a different provider (Care Provider 3) which Mr X had visited. The records say Mrs X became very agitated, and started to pace the room and scream loudly. She threatened to jump out of the window. The staff member called in the manager.
77. The manager wrote a short statement after the incident. She had heard Mrs X screaming while she was outside with a resident. She said the resident became very distressed by the noise and started banging his head. She had to take him away to manage his anxiety and calm him down. About an hour later, Mrs X calmed down and went to see Mr Y. When she left the care home later, she damaged a fence panel while reversing her car.
78. On 7 September Mr X telephoned a member of staff at Care Provider 1 to say he was very upset about the incident involving Mrs X on 5 September. He also expressed his view that the service was not appropriate for Mr Y’s needs. The manager reported the conversation to the Council. She said Mr X tried to get her to agree that the service could not meet Mr Y’s needs to support Mr X’s aim for Mr Y to be moved to Care Provider 3. The Council’s case notes say Mr X was verbally aggressive during the call and said he would visit the care home that afternoon to disrupt a meeting. Mr X categorically denies acting in an aggressive manner during the call. The member of staff said she was concerned for the welfare of staff and residents if Mr or Mrs X came to the home.
79. Following these incidents, a solicitor in the Council’s Legal Service wrote to Mr & Mrs X’s solicitor. He said Mrs X’s conduct during the visit on 5 September had caused distress to staff members and residents. He also referred to Mr X’s agitated manner when he spoke to a member of staff in the care home on 7 September. He had asked managers in the Adult Social Care service to meet Mr & Mrs X to discuss the incidents and seek an assurance this would not happen again. He said Mr Y’s placement with Care Provider 1 was at risk unless Mr & Mrs X gave these assurances and agreed to work positively with staff.
80. On 7 September Mr & Mrs X received an email from a senior officer saying that if there were any further episodes of inappropriate behaviour towards staff the police will be notified and asked to attend the care home. Mr & Mrs X say they were asked to sign an agreement to behave appropriately in future or risk being banned from visiting Mr Y.
81. On 8 September Care Provider 1 drew up a protocol for future visits by Mr & Mrs X. They could continue to visit Mr Y. But if they engaged in any inappropriate or aggressive behaviour staff would ask them to leave. If they refused to leave, the police would be called.
82. A senior officer in the Transitions service invited Mr & Mrs X to attend a meeting on 11 September. In the event the meeting did not take place because Mr X could not attend due to work commitments. Mr & Mrs X did not sign any written undertakings about their future conduct. They continued to visit Mr Y at Care Provider 1 until he left and moved to a new care home in late September.
83. Mr X says Mrs X was experiencing a mental health crisis and breakdown on 5 September. She subsequently received treatment from her GP and counselling. He says the care home staff’s records show Mrs X did not behave in an aggressive or threatening manner. They both consider the Council’s handling of the matter was insensitive and excessive. They want the Council to apologise and amend the social care records.

Deprivation of Liberty safeguards assessment

84. On 21 July Officer C, who had taken over from Officer A, referred Mr Y’s case to the Council’s DoLS team for a deprivation of liberty safeguards standard authorisation. On the referral form she said the front entrance door to the building is kept locked and has a key pad access. There are three air lock doors in the building. Mr Y is supervised on a 1:1 basis by staff. He was not free to leave and was subject to continuous supervision. She also reported that Mr & Mrs X had objected to Mr Y’s move to the placement and had applied to the Court of Protection.
85. The DoLs best interests assessor consulted Mr X and the manager of the respite provision. She visited the respite care home and met Mr Y. She considered a report from a consultant psychiatrist who had assessed Mr Y at the respite home. She also had regard to Mr Y’s care and support plan and the social care case records. She received comments from Mrs X on 31 August.
86. The best interests assessor concluded Mr Y was extremely vulnerable. She recommended it was necessary to deprive Mr Y of his liberty to prevent him suffering harm. She said the restrictions in place at the care home were proportionate.
87. On 15 September 2017 the Council issued the DOLs standard authorisation and it came into force that day. No conditions were imposed. The authorisation enabled the care home to provide:
• Care in a 24 hour staffed, safe and contained environment;
• Support for Mr Y with personal care and activities of daily living;
• Management and administration of medication and liaision with health services;
• Assessment and management of risks from falls;
• Support to meet Mr Y’s nutrition and hydration needs;
• Reassurance, emotional support and intervention to manage Mr Y’s behaviours
88. Officer C made the DoLS referral promptly on the day Mr Y moved to Care Provider 1. The Council accepts it took several weeks to carry out the DoLS assessment and issue the authorisation. It says it gives priority to contested cases.
89. Although Mr & Mrs X were dissatisfied with the decision to move Mr Y to this placement, they do not dispute he needs restrictions on his liberty to prevent him coming to harm.

Mr Y’s move to Care Provider 3 and his permanent placement with Care Provider 4

90. On 13 September the manager of the Transitions service informed Mr X that a place would be available for Mr Y with Care Provider 3 from 25 September.
91. Following visits by staff from Care Provider 3 to assess Mr Y, and prepare a transition plan, he moved there on 25 September. This was Mr & Mrs X’s preferred interim placement.
92. Due to delays with building works for Care Provider 4’s new provision, Mr Y stayed in Care Provider 3’s accommodation until 16 July 2018. He then moved to his new permanent placement. Mr & Mrs X are very satisfied with this placement which they say fully meets Mr Y’s needs.

Analysis

Ceasing to maintain Mr Y’s EHC Plan and the referral to the Panel

93. The Joint Assessment Panel’s decision to cease to maintain Mr Y’s EHC Plan, and not to approve the parents’ request for a transfer to College A, was made just eleven days before Mr Y’s placement at School A was due to end. That was far too late. Although there was parallel planning by the Transitions service to look for adult social care placements, the timing of the Panel’s decision to cease the statement, and refuse Mr & Mrs X’s request for College A, did not give them enough time to consider whether to seek mediation and appeal to SENDIST before Mr Y’s placement ended on 21 July. The Council had been on notice since February 2017 that Mr Y’s placement was likely to end in July. School A had confirmed Mr Y’s leaving date in April 2017. Mr Y’s case should have been referred to the Panel for a decision about post July 2017 arrangements well before 10 July. The delay in referring the case to the Panel was fault.

Transition planning for Mr Y

94. It was entirely foreseeable that it would take a long time to find a suitable adult social care placement for Mr Y. He has complex needs and requires a specialist residential placement. Some potential care providers did not have any vacancies and Mr & Mrs X considered others unsuitable. That made it particularly important to start the transition planning in good time and to arrange an early transition planning meeting with Mr & Mrs X.
95. The Council made the point that transition planning started in February 2017 when Officer A contacted Mrs X. I accept there was contact then but the Council did not give sufficient urgency to transition planning for Mr Y. There was no effective joint working and poor liaison between officers in ISEND and the Transitions team. As a result, some significant information – such as the offer of a place by College A – was not properly shared and acted on. There was also a significant delay in acting on Mrs X’s request in February 2017 to confirm Mr Y’s leaving date and the terms of the Council’s contract with the school.
96. The first transitions meeting with Mr & Mrs X did not take place until 8 June 2017. That was two months after School A had informed the Council that Mr Y’s placement would end on 21 July. The delay in arranging this planning meeting put the Council and Mr & Mrs X under considerable time pressure. It led to crisis planning and left very little time to find a suitable adult social care placement before 21 July.
97. Mr Y’s move from his residential school to an adult social care placement was a significant milestone for him and Mr & Mrs X. Clearly the uncertainty about Mr Y’s future placement caused Mr & Mrs X severe anxiety and distress. I consider this could have been lessened to some extent if the Council had started to plan for the July 2017 transition, and arrange meetings with Mr & Mrs X, sooner. However, I cannot say it would necessarily have led to a different outcome, or fewer moves between care homes, for Mr Y. The Council had limited options. It had to find a care provider with a vacancy for an interim placement who could meet Mr Y’s needs. Mr Y needed an interim placement until the permanent placement with Care Provider 4 became available. The Council only had two adult respite services, and Care Provider 2 withdrew its offer of a place for Mr Y in the July 2017 meeting. That left Care Provider 1 as the only available option at the time Mr Y had to leave School A.

DoLS assessment

98. It took the Council almost nine weeks to complete the DoLS assessment and issue the authorisation following Mr Y’s move to Care Provider 1. That delay is fault. However, it must be seen in the context of a significant increase in workloads for councils following the Supreme Court judgment in 2014. It is a matter of record that many councils have struggled to manage this workload and carry out timely DoLs assessments. They have had to apply criteria to prioritise cases awaiting assessment. New legislation coming into force in 2020 will transfer more responsibility for DoLS assessments to care providers to ease the administrative burden for councils.
99. It was appropriate for the Council to prioritise contested applications. In this case, Officer A made the referral promptly on the day Mr Y moved to Care Provider 1. There was then a delay in completing the assessment and issuing the authorisation. But I do not consider this delay caused injustice to Mr Y because:
• he needed restrictions placed on his liberty and Mr & Mrs X did not contest this;
• when the authorisation was issued, the DoLs assessor did not impose any conditions and considered the restrictions already in place were appropriate.

Incidents at Care Provider 1 in September 2017

100. I accept Mrs X did not deliberately intend to cause alarm or distress to staff or residents by her conduct in the care home on 5 September. She was in a state of extreme distress and was experiencing a mental health breakdown. Nevertheless, the evidence from care home staff is that Mrs X’s behaviour caused considerable distress to a resident who witnessed the incident. It also upset and unsettled staff. It was Mr X’s telephone conversation with a member of staff at the care home two days later which prompted the Council to ask them both to sign an agreement about their future conduct. Mr X categorically denies any inappropriate conduct on his part.
101. Mr & Mrs X believe the Council over-reacted to these events. They say the request for them to give assurances about their future conduct was disproportionate and showed a lack of sensitivity to Mrs X’s health issues. For its part, the Council had a duty to consider reports from care home staff about the impact the incidents had on the wellbeing of staff and residents. The care home had expressed significant concerns and suggested Mr Y’s placement was at risk unless it received assurances from Mr & Mrs X. The Council was bound to act on that information.
102. I recognise the care home staff and Mr & Mrs X have very different perspectives on what happened and the appropriate response. Having considered all the available evidence, I do not consider the Council was at fault when it responded to the care home’s reports by proposing a meeting with Mr & Mrs X and seeking written assurances about their future conduct.
103. Furthermore, as Mr & Mrs X did not sign any written undertakings, and they continued visiting Mr Y until he left the care home a few weeks later, I do not consider they suffered any significant adverse consequences that would warrant further investigation.
104. In response to my first draft decision, the Council accepted that:
• the Joint Assessment Panel’s decision about the parental request for Mr Y to move College A and to cease to maintain the EHC Plan was made too late. It told me it has reviewed its processes and provided relevant training to staff;
• there were delays in the transition planning process and the first transition meeting should have taken place before 8 June 2017;
• there was poor communication between officers in ISEND and the Transitions team responsible for assessing Mr Y’s educational and social care needs
105. The Council wishes to apologise to Mr & Mrs X for these failings and the impact on them. The Council says it is taking steps to improve joint working between the transition team and ISEND as a learning point from this complaint.

Agreed action

106. Within one month of my final decision, the Council will:
• Arrange for a senior manager to write a letter of apology to Mr & Mrs X acknowledging the faults identified in this statement and the impact this had on them;
• Pay Mr & Mrs X £500 to recognise the distress, frustration and uncertainty they suffered due to the faults identified in this investigation;
107. Within three months of my final decision, the Council will:
• draw up a protocol to ensure effective joint working and information-sharing between officers in ISEND and the Transitions team. It should clearly define the roles and responsibilities of officers in both teams in the transition planning process;
• arrange a briefing session for officers working in ISEND and the Transitions team to promote awareness of the protocol and reinforce the learning points from this complaint;
• provide information about the systems it has put in place to identify young people whose specialist educational placements are coming to an end and ensure timely referrals are made to the Joint Assessment Panel to make decisions about future placements;
• provide the Ombudsman with evidence to demonstrate it has implemented these service improvements.

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Final decision

108. I have completed the investigation and found fault causing injustice for the following parts of the complaint:
1. delay in referring Mr & Mrs X’s request for a placement at College A to the Joint Assessment Panel and in making the decision to cease to maintain the EHC Plan. This caused injustice. It left Mr & Mrs X in a state of uncertainty about Mr Y’s future placement. It also left them insufficient time to consider whether to appeal to SENDIST or seek mediation before Mr Y’s placement at School A ended on 21 July;
2. delays in the transition planning for Mr Y and a lack of effective joint working and information-sharing between officers in ISEND and the Transitions team. This caused Mr & Mrs X avoidable frustration and hindered effective and timely planning for Mr Y’s new placement;
3. delay in completing the DoLS assessment and issuing the authorisation. However, the delay did not cause injustice to Mr X. The authorisation confirmed the need for restrictions on his liberty and the assessor concluded that Care Provider 1 had made appropriate and proportionate arrangements.
109. I did not find fault in the way the Council responded to the incidents involving Mr & Mrs X in September 2017.

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Parts of the complaint that I did not investigate

110. The Ombudsman did not investigate the decision to move Mr Y from School A to Care Provider 1 on 21 July 2017 against Mr & Mrs X’s wishes. This matter was the subject of an application Mr X made to the Court of Protection.
111. The Court did not arrange an emergency hearing before Mr Y moved on 21 July so Mr X withdrew the application. However, the Ombudsman is barred from investigating a matter which has been the subject of an application to the court even if that application is withdrawn before a hearing.

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Investigator's decision on behalf of the Ombudsman