Summary: Mrs X complained the Council had failed to plan ahead for her daughter, Miss Z’s transition in support from children to adult social care support. She complained it has failed to support her and her husband adequately as carers. The Council unacceptably delayed work to prepare for Miss Z’s adulthood. It also failed to effectively assess Mr and Mrs X’s needs as carers. It has agreed to apologise, assess Mr and Mrs X as carers, review practice between service areas and pay Miss Z £200 as a token remedy.

The complaint

1. Mrs X complains the Council has failed to provide for her daughter Miss Z’s transition in support from children to adult social services. It seriously delayed providing her daughter with an Education, Health and Care plan. It gave Mrs X inconsistent and inadequate support throughout as a carer. It has failed to follow its policies. Its planning has not been person-centred or outcome-focused.
2. She says it has ignored her concerns, including failing to investigate a serious safeguarding concern she raised on Miss Z’s behalf. It has not set up an adequate personal budget to meet her daughter’s care needs for the past 18 months. She said it has not paid personal budgets as required. Mrs X says these faults have caused severe distress to her daughter and herself. The Council has not learnt from what has happened and continues to fail to listen and respond to her.

Back to top

The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. I have investigated events back to January 2016 specifically and only concerning the adequacy of the Council’s planning for Miss Z’s transition to adulthood. Mrs X’s became increasingly concerned as that transition approached and then formally complained. That part of the complaint is therefore about ongoing matters and it is appropriate to consider the Council’s actions in respect of this matter throughout this period. However, I have not investigated delays in finalising EHC plans before 2018. This is because Mrs X could have complained about this earlier and it was reasonable for her to do so.
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)) 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)
8. 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.
9. 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)

Back to top

How I considered this complaint

10. I spoke to Mrs X about her complaint and made enquiries of the Council.
11. I considered the Council’s records including draft and final EHC plans, a care plan review and chronologies of events prepared by officers in the children’s services and adult social care teams.
12. I gave the Council and Mrs X the opportunity to comment on my draft decision. I considered Mrs X’s comments before writing this final decision.

Back to top

What I found

Education, Health and Care plans

13. Children and young people with complex needs can have an Education, Health and Care (EHC) plan. Councils must assess a young person’s social care needs alongside carrying out an EHC assessment.
14. If assessment leads to a decision to issue an EHC plan, the council has to issue this and ensure provision in the plan is put in place. It must ensure the plan is reviewed annually and implement any changes from annual reviews.
15. We can look at faults in the EHC assessment process and complaints about whether provision in an EHC plan has been put in place. We cannot challenge or change the contents of an EHC plan.
16. The Special Educational Needs and Disabilities (SEND) Tribunal can consider appeals about the content of much of the plan, including its coverage of special educational needs provision. The Government is piloting appeals to SEND about the social care and health parts of an EHC plan but only where there is also a dispute about special educational needs. Tribunals will not hear appeals about personal budgets or social care outcomes in isolation.

Planning for transition to adulthood

17. Councils must ensure young people moving from support from children’s services and education have a smooth transition to support from adult care services. The Children Act 1989, Care Act 2014 and Children and Family Act 2014 set out how this should work.
18. When a young person who receives social care services is approaching adulthood, councils have a duty to carry out a transition assessment to decide what support they will require when they turn 18. Early conversations provide an opportunity for young people and their families to reflect on their strengths, needs and desired outcomes, and to plan ahead for how they will achieve their goals. (Care and Support Statutory Guidance, section 16.3)
19. For young people with an EHC plan, preparation for transition to adulthood must begin from year 9 (age 13-14). Transition planning at this early stage must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, going into work, career planning, financial support, accommodation and personal budgets where appropriate.
20. The transition assessment should be undertaken as part of one of the annual statutory reviews of the EHC plan, and should inform a plan for the transition from children’s to adult care and support. Where the person moves to adult care and support after the age of 18, their adult care and support plan must form the basis for the care section of their EHC plan. (Care and Support Statutory Guidance, section 16.11, 16.65)
21. Transition assessments should be carried out in a reasonable timescale (Care and Support Statutory Guidance, section 16.32)
22. There is no obligation on councils to implement the move from children’s social care to adult care and support as soon as someone turns 18. When an assessment is not complete before the young person’s 18th birthday, councils must continue to provide existing children’s services until they finish the assessment of their needs for adult services. This helps to avoid a ‘cliff edge’ at age 18 when services might cease. It also allows greater flexibility in the timing of transition. The guidance and legislation do not say an assessment must be complete by the person’s 18th birthday. (Care and Support Statutory Guidance, section 16.62, 16.68)
23. Assessments for adult care and support must consider the young person’s current needs, whether they are likely to have needs after they turn 18 and, if so, what those needs are likely to be and which will be eligible needs under the Care Act 2014. This preparation must result in the EHC plan including meaningful outcomes based on the young person’s aspirations, interests and needs. Council services must work together to support the young person. (SEND Code of Practice 2015, section 8.61)

Support for parent carers

24. The Children and Family Act 2014 says councils must assess the needs of parents as carers for their children when they ask them to. Parent carers are entitled to a separate carer’s assessment but their needs can be addressed during the child’s assessment. This should consider the parent’s wellbeing and needs.
25. If an assessment finds the parent has care needs requiring services, then these can be included in the child’s EHC plan. They do not have to be set out in a separate carer support plan. Councils should develop support for parent carers alongside the EHC plan where appropriate. The package of care and support should be developed in a joined-up way.
26. Councils must carry out assessments for carers of disabled children when those children are approaching their 18th birthday. Assessments should consider whether the carer is able and willing to continue caring after the young person reaches 18 years old.

Short breaks for disabled children

27. Councils can provide support services for children in need and their families including short breaks that meets the child and family’s needs. This can include covering the cost of the break and of care the child needs during the break by making direct payments to the family.
28. Councils must consider the needs of different types of carers, provide a range of breaks and give parents a summary of what breaks are available. Short breaks can be important to both the young person, and their parents’ wellbeing.

Safeguarding adults

29. The Care Act 2014 (Section 42) says a council must make enquiries or ask others to do so if believes an adult is experiencing or at risk of abuse or neglect. An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect and, if so, by whom.
30. This is to decide whether abuse has taken place and whether the adult at risk needs a protection plan to keep them safe.

Background and events before 2016

31. Miss Z is a young person who is now nineteen years old. She has significant learning and physical health needs affecting all aspects of her life. She has had a Statement of Special Educational Needs and Education, Health and Care plan (EHC plan) throughout her education. This has included a section (Section D) on meeting her social care needs as a child. She has been at a specialist secondary school since 2011 until 2019.
32. As part of Miss Z’s support, she has had a personal budget from the Council covering support from personal assistants and a charity. Her personal budget also includes support for overnight short breaks at a residential centre. This personal budget, in total comes to £57,681 per year. The Council has said it is flexible about how this is used and allows use of underspend in other ways.
33. In 2014, when she entered school year nine, the Council met with Miss Z and family. It decided not to start work on transition to adulthood planning at that stage because Miss Z was not ready. Mrs X explains this was because Miss Z had recently undergone surgery and was off school. The family only meant the pause to be for a short time. She says that over the next couple of years, the council advised her to wait to plan because available services were changing all the time. The Council took no further action to plan ahead for Miss Z’s transition until 2016, by which time she was 16 years old.
34. I will summarise events concerning Miss Z’s EHC plan and then, separately concerning assessment and support to Mr and Mrs X as her carers.

Events from 2016 to 2017 related to Miss Z’s EHC plan

35. The Council started planning for Miss Z’s post 18 education in early 2016. Her EHC plan section on social care needs identified continued use of direct payments for weekly community short breaks and extra support during school holidays on a flexible basis. The Council paid for short breaks through direct payments to Mr and Mrs X, allowing hours to be banked if not used. It says it allowed use of any unspent money to flexibly meet Miss Z and the family’s needs.
36. In the plan, Mr and Mrs X identified their wish for Miss Z to go into further education and develop skills to equip her for adulthood. They said the plan did not adequately reflect preparation for adulthood and independent living.
37. In June 2016 when Miss Z was 16, the Council children’s social services team asked the Council’s adult social care team to work with Miss Z to carry out an assessment of the level of social care support. No contact was made until early 2017, over six months later. This was because of Council staff shortages.
38. In November 2016 a Council careers advisor met with Miss Z at school and contacted Mr and Mrs X to talk about her future options. A Council social worker, specialising in transition to adulthood, visited Miss Z in January 2017, when she was 17 years old, six months after the request.
39. The Council started to carry out an assessment of Miss Z’s adult care needs to develop a support package for when she reached 18. Due to Council staff shortages an agency social worker met the family in March 2017. The Council says the adult social care team’s discussions at this time were about family based short breaks post 18. Mrs X says the family was not at meetings during this time, were not asking for this and wanted a package for Miss Z post 18 that reflected what she had from children’s services, but better able to meet her needs.
40. The Council says its adult social care team made contact again in April 2017 to discuss post 18 support. It says there was joint visits from the Council’s education and social care teams from that time on to understand Miss Z’s needs.
41. The Council amended Miss Z’s EHC plan in July 2017 giving appeal rights. The EHC plan recorded the continued, still outstanding need to carry out an assessment of Miss Z’s adult social care needs under the Care Act. It said it was “imperative … that the transition process is one which is smooth in order to reduce [Miss Z’s] anxieties”. It said once she had moved to its adult social care team there would be a similar review process in terms of her overall care package.
42. Mr and Mrs X continued to be concerned. After mediation with the Council in September 2017, notes of an EHC plan review meeting in December 2017 refer to discussion about the continuing need to plan for Miss Z’s transition to adulthood. By then, the plan for Miss Z to attend a college had changed because, based on visits to the college it seemed unsuitable to meet her needs. Mrs X explained this was because Miss Z had visited the college, accompanied by a nurse from her short-breaks provider. Mr and Mrs X made a complaint about witnessing practice at the college that Mrs X says was largely upheld. They had to find alternative provision, delaying transition for 5 months, causing upset to Miss Z. Mrs X says changes in agency adult social work support caused additional delay in completing Miss Z’s plan.

Events from 2018 to 2019

43. In February 2018, the Council finalised a revised Direct Payment Agreement for Miss Z. This again covered short breaks (and carer support during these) and personal assistant support. It referred to educational opportunities and choice post 19 but did not go into detail.
44. The Council issued another amended draft EHC plan in February 2018. Mr and Mrs X raised concerns about this, including the adequacy of social care support. In April the Council’s Head of Disability responded to Mr and Mrs X’s concerns. He apologised that the Council’s adult social care staff had not attended the EHC plan review or contributed. He said Miss Z’s new social worker was now writing an updated section for her EHC plan.
45. A mediation meeting with the Council happened in June 2018. The meeting agreed the need for another meeting to discuss Miss Z’s post 18 curriculum and transition to adulthood. During July the Council children’s team again asked for input from the Council’s adult services. The adult team sent its contribution to the EHC plan in August. Records show that the Council’s special educational needs service staff had concerns about the adequacy of the social care section which had only broad outcomes and no details. They reported problems getting input to the plan from the Council’s social services. Mr and Mrs X were then sent a copy of Miss Z’s adult social care and support plan dating from March 2018. They said this was the first they had seen of it, and it was inaccurate, out of date and inappropriate.
46. The Council issued a final amended EHC plan with appeal rights in October 2018. This records Mr and Mrs X’s continued concern at the lack of planning for Miss Z’s move from children to adult’s social care. The social care provision in section D of the EHC plan is still dated November 2017 and refers to assessments carried out at that time.

Support for Mr and Mrs X as carers

47. In December 2016 the Council says it started to carry out a carer’s assessment for Mr X. It says it has always understood he was the main carer for Miss Z. The Council has not found a copy of this assessment. It has provided a copy of a carer support plan review for Mr X from September 2018 which I refer to below. This suggests an earlier assessment must have taken place. The Council has no record of Mrs X requesting a separate carer’s assessment for her. Mrs X says she was told by the Council that only one person can be an ‘official carer’ and so could not also be assessed.
48. The Council’s carer support plan review of 2018 said Mr X wanted help to have a short break from care responsibilities to allow him to recover and keep providing the care. It recorded his concern he was suffering from ill health because of the family circumstances. This had got worse since the last carer assessment. I do not have a record of when this was.
49. The review also stated Mr X’s view he was not getting the support he needed as Miss Z’s carer. He said he could continue to care but would need further support to do so. It recorded his wellbeing and health had got worse since the last carer assessment. It said he needed funding to have time away to recover so he could provide the level of care needed. It said he was confused about the support for Miss Z’s needs and that her personal budget was unclear. The Council said its officers would work to resolve this issue.
50. It recorded he rarely had personal dignity, often felt his wellbeing was affected by his circumstances, he had little control over his daily life and could not participate in work, education, training or recreation. His family circumstances were suffering and he did not know where to go for additional support.
51. The only action identified in the Council’s assessment of his needs as a carer was £300 “financial support to give [Mr X] opportunity to pursue his own interests”. The assessment did not record whether or not this was working. It did not record the Council’s consideration of Mr X’s clear dissatisfaction with his current level of support or whether the financial support in place was appropriate to meet his assessed support needs as a carer. It did not refer to how the short break provision for Miss Z was working in respect of meeting Mr X’s carer support needs.

Mr and Mrs X’s complaint to the Council and its responses

52. Mr and Mrs X formally complained to the Council about its support to Miss Z. In August 2018 it replied at stage 1 of its complaints procedure. It found it had unacceptably delayed in progressing the EHC plan review. It said it would improve its communication about EHC plans. It apologised for delays and said it would learn lessons from what had happened.
53. Meanwhile in August 2018 Mrs X raised a safeguarding concern about Miss Z’s school. The Council carried out enquiries with the school and family. It decided there was no evidence to support further action. Mrs X says she had to keep raising the issue with the Council until it realised it had not been investigated properly. The Council told the Ombudsman, in August 2019, as a result of Mrs X’s complaint to us, that it had now reopened its safeguarding investigation and was in contact with Mrs X about this.
54. In September 2018, Mr and Mrs X complained to the Council at stage 2 of its complaints procedure. In summary the Council’s response relating to matters covered by my investigation was that:
• It did not know why they had not been sent Miss Z’s adult social care and support plan (dating from March 2018) for several months.
• It apologised that the EHC plan was still incomplete and lacked adequate adult social care content. It would arrange for a new social worker to follow this up.
• It had taken too long to assess Mr X as a carer. An assessment had now been completed and this should mean he got appropriate support. It would ensure the team prioritised assessments in future.
• There had been inconsistent practice between the Council’s adult social care and its children’s services in support to Miss Z. Communication across council services had not been satisfactory. This was particularly unacceptable given Miss Z was approaching adulthood. It would try to improve in future.
• It would update on progress with the safeguarding investigation at a forthcoming meeting.
• Its adult social care team had not given the family appropriate support over a crucial time. There had been recent changes to the team meaning it would provide more permanent support in the future.

Events since the stage 2 complaint response

55. During the winter of 2018–2019, discussion continued regarding Miss Z’s post 18 educational provision. At the EHC plan annual review in December 2018 there was discussion between the Council and a college about whether was able to meet Miss Z’s needs.
56. After a review meeting in December 2018, the Council issued a draft amended plan in January 2019. In March 2019 the Council issued an amended final EHC plan for Miss Z, naming the college s her educational setting from February 2020, significantly after she would have left her special secondary school (in July 2019). After further discussion and mediation with the Council Miss Z was given a place at the college from September 2019, the college having agreed to bring this forward from February 2020.
57. Mr and Mrs X appealed to SEND about the contents of this plan of March 2019. The Council has told the Ombudsman that frequent changes in its social worker have caused problems for Mr and Mrs X and Miss Z. It has identified a permanent duty worker and recruited a new transition social worker to improve support for this in the future.
58. In March 2019 the Council issued an updated care and support plan for Miss Z. This referred to continued flexible use of direct payments for personal assistant support and short breaks. A further, updated plan was issued in September 2019 again referring to flexible use of direct payments. The Council has provided the most recent assessment and support plan but has no record of sending these to Mr and Mrs X.

Complaint to the Ombudsman

59. After the stage 2 response, Mrs X complained to us on behalf of Miss Z and the family about what had happened. She told me the Council had failed to work across adult and children’s teams effectively to support the family. She said the family is unable to cope financially.
60. Mrs X said that the lack of help from the Council’s social workers during Miss Z’s move to adulthood was very traumatic for her and affected her massively. The Council had not taken responsibility or given consistency or planned ahead.
61. She said the Council fails to communicate clearly in writing and has not stood by its commitments to improve. She said anxiety caused by this matter has seriously affected her health. She says that Miss Z’s support plan is from 2017 and out of date. She said it has asked for repayment of direct payments without explanation.

My findings

Transition planning for Miss Z

62. The Council did not prepare sufficiently in advance for Miss Z’s transition to adulthood. Statutory guidance required preparation for her adulthood to have started when Miss Z was in year 9 when she was 13-14 years old. The SEN code of practice further says that in practice this should “start early and ideally well before Year 9 at school”. Instead the Council did not start planning for this for another two years, until Miss Z was 16. That was fault.
63. The transition assessment should have been undertaken as part of the review of her EHC plan and should have informed her plans from then on for the transition from children’s services to adult care and support. Instead, as the Council accepted was fault in its stage 2 response, the adult care content of the plan was inadequate, generalised because it was based on out of date information until appropriate staff support was put in place after the complaint.
64. It appears the decision made in 2014 to put work on hold was taken with general agreement, including from Mr and Mrs X, taking account of Miss Z’s situation. However, the Council did not have discretion to put planning ahead on hold. In any case it is clear Mr and Mrs X continued to express their concern about the absence of planning ahead in each subsequent annual review of Miss Z’s EHC plan and that problems with consistent staffing led to ongoing delay.
65. This significant and prolonged delay was therefore fault. It caused significant avoidable ongoing distress and uncertainty to Mr and Mrs X who were understandably worried about the lack of forward planning. The Council did start work in 2016 on transition planning although Mr and Mrs X continued to be concerned. After this delayed start, there were continued problems, acknowledged by the Council in its complaints response, getting adequate input and involvement from the Council’s adult social care. This was fault.
66. Because of the eventual agreement Miss Z could start at the college in September 2019 and not February 2020, she did not directly suffer injustice from the fault in the form of lack of educational provision. However, Mr and Mrs X are sure the delays and uncertainty were traumatic for Miss Z and caused her avoidable distress. They have explained her health and mental well-being suffered and she has ongoing problems now at the college because of the lack of transition planning. I cannot say how much distress was caused to Miss Z directly as a result of the Council’s fault but have no reason to doubt her parents’ assessment that distress was caused.
67. Mr and Mrs X have now been able to appeal to the SEND Tribunal about the special educational provision content of Miss Z’s current EHC plan.
68. The Council has apologised for faults in how it prepared for Miss Z’s transition and for inadequacies in its planning to meet her social care needs. It should provide Mr and Mrs X and the Ombudsman with an action plan setting out how it has learnt from this complaint to improve transition planning. This should involve collaboration across adult and children’s services departments and be a corporate response.
69. Although Mr and Mrs X have not asked for a financial remedy, the Council should also pay Miss Z £200 as a token recognition of distress caused to her by its fault.

Carer support for Mr and Mrs X

70. The Council has been unable to provide a copy of a carer assessment for Mr X. Its carer assessment review of him from September 2018 is inadequate. It records his serious concerns about the adequacy of support for him as carer, but fails to explain how the Council decided that the only identified service, a financial award of £300, was adequate to meet these needs. It did not consider whether this level of support was working, leaving this section of the form blank. This was therefore fault.
71. As Miss Z approached 18 years old, the Council had a duty to assess the needs of both Mr and Mrs X as her carers as an adult. It should have considered whether they were able to continue to care for Miss Z as an adult and to consider what support they needed to enable them to do so. It did not do so. This was fault.
72. To remedy injustice caused by this fault, the Council should promptly fully assess the carer support needs of Mr and Mr X in the context of Miss Z’s transition to adulthood. If it finds they have eligible care needs, it should prepare a carer support plan that it considers meets those needs.
73. Mrs X has told me she is concerned the Council is not correctly administering the personal budget. The Council could use the opportunity of this fresh carers assessment to explore this uncertainty and clarify matters. It should also ensure it properly explains use of direct payments, including arrangements for reclaiming unused contingencies. |It should ensure it keeps written records of providing clear, written advice to persons concerned.

Safeguarding investigation

74. The Council has reopened its safeguarding investigation as a result of this complaint. I cannot investigate the actions of the school. I have therefore not investigated this further as the Council is best placed to respond to Mrs X’s concerns. It should conclude its investigation promptly and advise her appropriately.

Agreed action

75. Within one month of my final decision the Council has agreed to:
• Pay Miss Z £200 as a token recognition of distress caused to her by its delays in transition planning.
• Apologise to Mr and Mrs X for not properly considering, assessing and planning to meet their needs as Miss Z’s carers
• Carry out a full carers’ assessment of Mr and Mrs X, and develop a carer support plan for them that meets any identified care needs. Review the adequacy of financial support for Mr and Mrs X. Clarify with them how this can be used, ensuring it sets out this advice and agreement in writing.
76. Within three months of my final decision the Council has agreed to develop a joint action plan between adult and children’s services to explain how it will improve its practice to plan ahead for transitions, learning from this complaint.
77. This review should also ensure the Council keeps adequate records of when it sends key documents (for example assessments and care plans) to persons concerned. It will provide the action plan to the Ombudsman and to Mr and Mrs X.

Back to top

Final decision

78. I have completed my investigation as I have found fault causing injustice and the Council has agreed actions to remedy this and prevent reoccurrence of fault.

Back to top

Investigator's decision on behalf of the Ombudsman