Summary: Miss Y complained for herself and her son, Mr D, that the Council delayed in arranging suitable social care to meet Mr D’s needs. She complained the Council failed to tell her that it doubted Mr D had mental capacity and then delayed in getting a new ability test for him. The Ombudsman finds no fault in the council’s actions.

The complaint

1. Miss Y complained for herself and her son, Mr D that the Council delayed in arranging suitable social care to meet Mr D’s needs. She complained the Council failed to tell her that it doubted Mr D’s mental capacity and then delayed in getting a new Intelligence Quotient (IQ) test for him.
2. Miss Y said she had to spend her own money to instruct a solicitor to help. She said she and Mr D have been upset at the uncertainty of what provision Mr D would receive and this has caused them disruption.

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The Ombudsman’s role and powers

3. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
4. 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)
5. 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)
6. 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)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

9. I wrote to Miss Y explaining my enquiries and asking for any comments. I later spoke to her about my investigation.
10. I asked the Council questions about the complaint and considered its reply and documents it provided including case notes.
11. I gave the Council and Miss Y an opportunity to comment on my draft decision and have considered the responses when making this final decision.

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What I found

12. A young person with special educational needs may have an Educational Health and Care (EHC) plan. It can continue until he or she reaches the age of 25. Councils will include social care and health provision in the plan. The health and social care elements of the EHC plan are those in connection with the special educational needs and support is to enable the young person to participate in education.
13. The Special Educational Needs and Disabilities (SEND) Tribunal can consider appeals about a young person’s special educational needs, special educational provision and the placement set out in an EHC Plan.
14. The Ombudsman can only consider decisions within EHC plans where there is no right of appeal including for health and social care matters providing there is no dispute about educational provision.
15. The Care Act 2014 and the Children and Families Act 2014 aim to improve the transition process for young people moving from children’s services to adult social care services.
16. Transition planning should consider the young person’s needs as he or she moves towards adulthood. When the young person becomes 18 the Council must decide whether to treat the existing children’s support assessment (Section 17) as an adult needs assessment. If the Council decides not to treat the Section 17 assessment as an adult needs assessment it must decide whether to carry out an adult assessment. It must do so if the person is likely to continue to need support over the age of 18. The Council must assess the adult’s needs, how they impact on their well-being and the results they want to achieve. There must be involvement of the young person throughout the transition period.
17. A person must be presumed to have capacity to make a decision unless it is found they lack capacity. Councils can assess someone’s ability to make a decision when they have doubts about their mental capacity. A mental capacity assessment must be specific to the decision to be made at a particular time.
18. Lasting Power of Attorney (LPA) is a legal document which allows people to choose one person (or several) to make decisions about their health and welfare (and/or finances and property) on their behalf. The Office of the Public Guardian (OPG) oversees the work of attorneys.

What happened

19. Mr D has Autism Spectrum Disorder and anxiety. Until Mr D’s IQ was reassessed in 2018, Mr D was thought to have a learning disability. He is now 20 years old. He had an EHC plan during childhood. Miss Y is Mr D’s mother and acts as Mr D’s representative and carer.
20. The Council has a specialist team to manage the transition of young people between the ages of 14 and 25 years old from children’s services to adult social care services. The Council placed Mr D’s case in this team in 2015 to begin the transfer to adult social care services. As a child Mr D had been receiving five days education provision at a specialist school, 1:1 support from a local befriending service and respite care one night per week set out in his EHC plan.
21. In 2017, when Mr D was 18, the Council’s transitions team reviewed his care and support provision alongside an annual review of his EHC plan. The Council sent Miss Y a draft copy of the reviewed EHC plan in January 2018. The draft EHC plan offered three days education provision a week at the college attached to D’s school. The Council offered social care placements to complement the education provision for the remaining two weekdays to promote Mr D’s independence and support him in socialising with his peer group and the wider community.
22. Miss Y told the Council she was unhappy with this decision and felt Mr D should receive five days education provision at the specialist college. She said this was the only provision which could meet Mr D’s needs. Miss Y told the Council she would seek legal advice to challenge the Council’s decision to only offer three days education provision.
23. The Council provided Miss Y with a list of short break providers for her to consider which might be able to meet Mr D’s social care needs. During a home visit in February, Miss Y said she would not accept any service other than five days education provision.
24. The Council provided MissY with a copy of the EHC plan in March 2018. This named Mr D’s placement as the specialist college for 3 days per week. Section F (Special educational provision) identified the need for 1:1 support and weekly small group therapy with an occupational therapist. Section H (social care provision) said Mr D should have 2 days per week for care provision and 4 hours per week outreach from suitable social care providers.
25. The Council advised Miss Y of the right to appeal the contents of the EHC plan at the SEND tribunal. Miss Y said she did not want to go through the tribunal process. This right would not have applied to dispute about social care provision in section H but could have considered whether or not the identified educational placement was adequate to meet his special educational needs.
26. Miss Y cancelled several sessions with the befriending service and Mr D stopped going to school due to anxiety in April 2018. Miss Y then told Mr D’s school he would not be returning to school. Mr D later stopped attending the 1:1 befriending service.
27. The Council referred Mr D to an independent advocacy service to ensure it could take his views into account. Miss Y’s solicitor replied, saying Miss Y was representing Mr D and the solicitor was representing Miss Y.
28. As Mr D was no longer accessing services the Council arranged a review of his social care needs. It also formally issued Miss Y with a copy of the final EHC plan in June. The review meeting was due for the beginning of June 2018 but Miss Y, through her solicitor, cancelled the meeting.
29. Miss Y instructed her solicitor to get a report to consider whether Mr D had mental capacity to decide if Miss Y should have Lasting Power of Attorney for him on welfare and finance issues. The psychiatrist recorded Mr D appeared to have capacity to consent to Miss Y as his representative.
30. The Council met with Miss Y and her solicitor later in June 2018. Miss Y said Mr D was finding school too hard and she no longer wanted Mr D to attend the school or college. The Council agreed to reassess Mr D’s needs and get a report from an educational psychologist. Miss Y’s solicitor also agreed to share the mental capacity assessment from the psychiatrist with the Council.
31. As Mr D was finding his schoolwork too hard the Council assessed his IQ. The assessment found Mr D did not have a learning disability. The Council made a referral to its adult mental health team to help Mr D manage his anxiety and Autism Spectrum Disorder (ASD) as it decided he no longer needed the support from the learning disability team.
32. In August Mr D decided to attend a different college, starting in September 2018. Miss Y was keen that he receive support from the mental health team to help his anxiety. Consequently, the Council arranged another review meeting with Mr D and Miss Y for the beginning of September. Miss Y cancelled this meeting as she felt the Council should carry out the review, after Mr D’s transfer to the Council’s mental health team. The transfer was made in October 2018.
33. Miss Y complained to the Council through her solicitor at the end of September 2018. The Council responded In November 2018 and denied fault in the Council’s actions. The Council’s response did agree there had been some misalignment between Mr D’s social care needs and the Council’s social care offered. This was because it had not reassessed Mr D’s needs since he stopped accessing the 1:1 befriending support until the complaint was made. However, the Council explained that, in its view, this was due to planned review meetings to reassess Mr D’s needs being cancelled by Miss Y.

Analysis

Mr D’s needs and the care and support offered in the EHC plan

34. When Miss Y received a copy of Mr D’s EHC plan in March and again in June 2018 after the Council were unable to agree the plan with her, she felt the Council’s offer of education and social care provision did not meet Mr D’s needs. She felt Mr D’s needs could only be met by continuing the existing five-day education provision, which the Council had reduced to three days education provision only, to allow for two days meeting Mr D’s social needs under the new EHC plan.
35. Miss Y had the opportunity to appeal to the SEND tribunal about the reduction in education provision. Where Miss Y has a right to appeal to the tribunal the Ombudsman will not investigate that matter unless there was good reason not to use this right to appeal. There is no evidence to show that there was good reason not to appeal about educational provision. Therefore, we have not investigated this matter.
36. Miss Y had no right through the tribunal to appeal the content of the social care offered in isolation of educational provision. The Ombudsman can investigate complaints about the social care provision offered by the Council but only where there was no dispute about the education provision. Here, there was a dispute between Miss Y and the Council about the amount of education provision Mr D was offered, as well as social care. There was an inextricable link between the level of educational provision and social care provision. Consequently, while the complaint about delay in securing social care provision will be considered below, we have not investigated how the Council determined the content of the social care offered for Mr D.

Delay and a lack of social care provision received by Mr D

37. It took from December 2017, when Mr D’s social care needs were assessed and his EHC plan was reviewed, until November 2018 for the Council to arrange an agreed package of social care for Mr D. Ideally, the social care should have been arranged sooner, but I have not found the Council at fault for the delay for the reasons set out below.
38. The Council indicated the contents of the EHC plan in January 2018. It provided Miss Y with a reviewed draft EHC plan in March 2018 and finalised the plan in June. Miss Y was informed of her right of appeal. However, she did not appeal despite Miss Y and Mr D being unhappy with the offered education provision.
39. The Council offered alternative provision from several different providers which it considered met Mr D’s assessed social care needs. Mr D did not take up these offers. Mr D stopped accessing the provision the Council had put in place in May 2018. Mr D refused all but 1:1 support specifically from the befriending service, but in July 2018 this became unavailable to him due to an issue outside the Council’s control.
40. As he was no longer receiving support, the Council appropriately wanted to reassess Mr D’s social care needs. The Council arranged the review, but the family cancelled. The family refused the Council’s offer of any other provision until August. The family then asked the Council for a further review of Mr D’s needs to be assessed following his transfer to adult mental health services.
41. Mr D and Miss Y’s refusal of the Council’s offer of provision and Mr D not attending his existing provision probably contributed towards the time taken and the social care offered not being received by Mr D. When the provision from the befriending service became unavailable, the Council arranged for Mr D’s needs to be reassessed. However, the solicitor, acting for Miss Y, asked the Council to cancel the reviews on two occasions before the family asked the Council to reassess Mr D once he had transferred into the adult mental health team. Consequently, as the Council did offer social care provision that it considered met his assessed needs which Mr D could have received, I have not found the Council at fault.

The Council did not tell Miss Y about doubts in Mr D’s mental capacity

42. Where Miss Y may previously have been able to make decisions on his behalf, as Mr D had turned 18 and was now an adult it was entirely his own decision about what services he wanted to access. As Mr D stopped using the services available to him and contact with the Council was almost entirely through Miss Y, the Council needed to ensure Mr D was able to express his own views.
43. As part of this, the Council considered whether Mr D needed a mental capacity assessment but decided it did not need to request one initially. Instead it referred Mr D to an independent advocacy service, though he refused this. The steps the Council took show it wanted to take Mr D’s views into account. There was not fault in how the Council made this decision.
44. The Council was also under no duty to tell Miss Y about this, as Mr D was now over 18 and regardless, Miss Y’s solicitor made her aware of the referral for advocacy services through her solicitor.
45. Miss Y wished to become Mr D’s legal representative in welfare and financial matters. In April, Miss Y instructed, through her solicitor, a psychiatrist to assess Mr D’s mental capacity. He was found to have capacity to make this decision. This decision was not an administrative function of the Council and so I cannot investigate it.
46. The Council did not receive a copy of the psychiatrist’s mental capacity assessment for the Lasting Power of Attorney until after the June meeting. This suggests the Council would not have been aware of Miss Y becoming Mr D’s attorney until June 2018 at the earliest. I would not therefore expect it to inform Miss Y of any concerns it may have had about Mr D’s mental capacity until it became aware of the Lasting Power of Attorney having been granted. I have therefore found no fault.
47. It was following the meeting in June that Mr D was referred to a specialist health and intervention team as agreed with Miss Y. Following this team’s assessment of Mr D, the Council informed Miss Y’s solicitor that the team had suggested Mr D’s capacity was assessed in relation to decisions about his social care.
48. The solicitor for Miss Y then asked the Council to prioritise this assessment. This was discussed in emails between the Council and Miss Y before the assessment took place. I do not therefore find fault in the Council’s actions as Miss Y was informed of this suggestion from the specialist team through her solicitor and requested that this be prioritised.

Delay in testing Mr D’s IQ

49. The Council’s social worker was directly informed Mr D was struggling to complete the work at his existing education placement in April 2018. Before this Mr D’s level of ability had largely not been questioned and it was not apparent to the Council that a revision of the original IQ test might be needed. I have found no fault in the Council not testing Mr D’s IQ before this point.
50. After the Council became aware that Mr D was finding the work too hard, the Council met with Miss Y in June 2018. During the meeting the Council agreed for Mr D to have an IQ test to ensure Mr D’s educational needs were met. This was completed in July 2018. As it was only a few weeks between the agreement to have the IQ test and the test being completed, I have found no delay and no fault on the Council’s part.

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Final decision

51. I have found the Council was not at fault in this complaint.

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Investigator's decision on behalf of the Ombudsman