London Borough of Redbridge (18 019 749)

Category : Adult care services > Transition from childrens services

Decision : Upheld

Decision date : 23 Oct 2019

The Ombudsman's final decision:

Summary: Mr and Mrs X complained about how the Council carried out their son, Mr Y’s, transition from children’s to adults’ social care. The Council was at fault as it delayed significantly in carrying out Mr Y’s transition assessment. It has also not issued an amended Education, Health and Care plan which incorporates the assessment. However, this has not led to Mr Y missing out on care and support. It has caused significant undue stress, inconvenience and frustration for Mr and Mrs X. The Council has agreed to arrange to complete the recommendations of its stage two investigation, review Mr Y’s EHC plan and pay Mr and Mrs X £300.

The complaint

  1. Mr and Mrs X complained, on behalf of their son Mr Y, the Council:
      1. Delayed, and did not properly carry out, the transition process from children’s to adults’ social care in line with the relevant law and guidance;
      2. Did not complete Mr Y’s transition assessment, relying on a draft that does not meet his needs;
      3. Is therefore not providing adequate support for Mr Y and his family; and
      4. Did not properly deal with their complaints and delayed responding.
  2. Mr and Mrs X have experienced distress and trauma. They have gone to significant time and trouble and do not feel listened to. Mr Y has not received the right support as an adult, which they believe has caused him harm.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)
  3. Mr and Mrs X complained to us in March 2019. The transition process began two years before this. However, in March 2018, 12 months before they complained, they were not aware the transition assessment would not be issued for a further eight months. In March 2018, they believed the assessment was ongoing and I would not have expected them to realise it was delayed significantly until later. The transition process started in early 2017 so I have used my discretion to consider events from then. I have investigated events up to March 2019.
  4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I considered the information Mr and Mrs X provided;
  2. I made enquiries of the Council and considered the comments and documents it provided;
  3. I looked at the Ombudsman's Guidance on Jurisdiction;
  4. I looked at the relevant law and guidance, including the Care Act 2014 and the Children and Families Act 2014;
  5. I considered the Ombudsman's guidance on remedies; and
  6. I wrote to Mr and Mrs X and the Council with my draft decision and considered their comments before issuing a final decision.
  7. 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.

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What I found

Relevant law, guidance and Council policy

Transition from children’s to adults’ services

  1. 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)
  2. Children and young people with special educational needs may have an Education, Health and Care (EHC) plan. For young people with special educational needs who have an EHC plan, preparation for transition to adulthood must begin from year 9. 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)
  3. Transition assessments should be carried out in a reasonable timescale. (Care and Support Statutory Guidance, section 16.32)
  4. There is no obligation on local authorities 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 child’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)
  5. 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. (SEND Code of Practice 2015, section 8.61)

Statutory children’s complaints procedure

  1. The law sets out a three stage procedure for councils to follow when looking at complaints about children's social care services. At stage two of this procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review.
  2. Councils must act expeditiously through complaints procedures, to deal with complaints as swiftly as possible. When a complaint moves to the stage two investigation process, the council and complainant should agree on the scope of the complaint and record it in writing. The stage two timescale starts from the date the complaint scope is agreed. Where a council cannot complete its investigation within 25 working days, it may extend stage two to a maximum of 65 working days. (Getting the Best from Complaints 2006, sections 3.1.3, 3.6.2 and 3.6.9)
  3. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.

Background

  1. Mr Y is 19 years old and attends a residential college. Mr Y has a severe learning disability and other needs. The Council provided direct payments for the family to arrange a support package during school holidays, when Mr Y went to stay at his parents’ home.
  2. We considered previous complaints from Mr Y’s parents on his behalf. These related to the educational support in place for him, which was not in line with what he should have received. We have issued three previous decisions relating to
    Mr Y’s support from this Council, including two public reports. The family experienced cumulative distress and the Council gave assurances it would learn lessons from previous mistakes. We previously considered events up to 2016.

What happened

  1. Mr and Mrs X had meetings with a transition worker from the Council in early 2017. They raised concerns before Mr Y turned 17, that his transition planning had not started.
  2. The Council issued an EHC plan for Mr Y in September 2017. Mr X was 17 years old and in year 13. The plan included social care provision of 14 hours of care weekly during school holidays, for the family to have a break and to support Mr Y at home. It also said Mr Y would attend a day centre near the family home during holidays and that he would have 10 days of short breaks yearly.
  3. In October 2017, the Council agreed to use an independent social worker (ISW) for Mr Y’s transition assessment. This was due to Mr and Mrs X’s trust in the Council having been affected by previous events. The Council identified an ISW and Mr and Mrs X met them six months before Mr Y was due to turn 18. Mr and Mrs X expressed concern again during a meeting in December 2017, that the transition assessment had not already taken place.
  4. The ISW met Mr Y at the end of January 2018, after Mr and Mrs X had chased the Council. The ISW’s record of work shows they then did not complete substantive action between mid-February and mid-April. Mr and Mrs X expressed concern at the end of April that the ISW had still not completed the transition assessment. Mr Y’s annual review for his EHC plan was scheduled for the beginning of May, but all parties agreed this would be delayed to wait for the transition assessment.
  5. Mr and Mrs X met with the ISW after Mr Y turned 18. They understood this was to complete the final details on the transition assessment. Mrs X told the ISW Mr Y had no provision at home now he was an adult. The Council still made Mr Y’s children’s services care package available. Mr and Mrs X told the ISW it was unclear how the care package the ISW recommended related to their assessment.
  6. The transition assessment was not complete by the beginning of July 2018.
    Mr Y’s annual review for his EHC plan went ahead as all parties agreed this could not be delayed any longer. The attendees discussed amendments that were needed to the wording of the EHC plan. The Council did not issue an updated plan as it decided to wait until the transition assessment was complete.
  7. Mr and Mrs X told the Council Mr Y’s transition assessment should have been completed to inform his EHC plan. They said the Council had not learned lessons from previous complaints. The Council said Mr Y had not lost out by staying under children’s services and having the transition assessment completed after the annual review of his EHC plan. It said once Mr and Mrs X had agreed the assessment’s contents, Mr Y’s transition would happen.
  8. The ISW emailed Mr and Mrs X a draft transition assessment in mid-July, asking for comments within six days. However, they could not open the secure email and asked the ISW to post it. They received the draft assessment four days before a response was requested. This was during the summer holidays, when Mr Y was at home and needed their full attention. They raised concern about the short timescale and told the ISW they were not available to meet to discuss the draft. It was agreed they would send their comments in September 2018.
  9. They told the Council and the ISW they would have substantive comments to make and gave a few examples. The ISW and the Council clarified it was not a final document. However, Mr and Mrs X sent a stage one complaint about the delay and the process followed in mid-August.
  10. The Council sent a complaint response two weeks later. It reiterated the document was a draft version. The Council said the assessment had taken such a long time as the ISW needed to get an accurate assessment of Mr Y, and they had not wished to produce the assessment in haste.
  11. The Council said it had yet to issue an amended draft EHC plan after the annual review, as it was waiting for the transition assessment. The Council apologised for the ISW asking for comments with a short timescale. The Council said the ISW would amend their assessment in line with the comments Mr and Mrs X had made, and it would be sensible to meet and gather their full comments. It said the ISW would contact them to arrange a meeting to record their comments.
  12. At the beginning of September Mr and Mrs X sent a stage two complaint.
  13. The ISW contacted Mr and Mrs X, and tried to arrange a visit to amend the transition assessment with their contribution. Mr and Mrs X said they would send comments in writing. The ISW posted an amended version to Mr and Mrs X that day which incorporated the comments they had sent so far.
  14. At the beginning of November, Mr and Mrs X chased the Council about their complaint. The investigating officer (IO) apologised for the delay and asked them to clarify their complaint. The IO suggested meeting face-to-face or discussing the issues on the telephone. Mr and Mrs X raised concern as they felt they had made their complaint clear, and had expected a response by October. They said they did not see the need for a further meeting. They clarified their complaint was:
    • The transition process for Mr Y had been drifting on for over 18 months with a lack of clarity and legal rigour.
    • The transition assessment was incomplete and had not been properly integrated into the EHC Process.
    • The Council had breached the law and guidance.
  15. They told the Council this had cost them significant time and trouble, caused stress and meant they did not have the proper support for Mr Y as an adult.
  16. The IO told Mr and Mrs X in November their investigation would likely be delayed.
  17. Mr and Mrs X did not provide further comments on the transition assessment. The Council and the ISW agreed to issue a final version to put services in place for
    Mr Y, and to update his EHC plan. The transition assessment recorded Mr Y had eligible needs which the Council would meet. It sent the assessment to Mr and Mrs X, explaining it had included the comments they had made.
  18. At the end of November, the Council’s resource allocation panel agreed Mr Y’s package of support, to be paid to Mr and Mrs X via direct payments. This provided 16 hours of support from two carers weekly for Mr Y to access the community, and seven weeks of respite. The Council did not issue a new EHC plan, which meant Mr Y’s plan citing his previous level of support remained current.
  19. Mr and Mrs X told the ISW they could not see how the care package the Council had agreed related to statutory processes. They said they would no longer engage in non-compliant processes. The ISW raised concern with the Council that Mr and Mrs X were not prioritising Mr Y’s needs, given their detailed focus on compliance. They added “It is difficult to comprehend the reasons for not accepting a support package”.
  20. At the end of February 2019, the Council and ISW discussed that Mr Y had not yet used his care package. Mr and Mrs X told the ISW they would not use it while they had an unresolved complaint. The ISW tried to arrange to visit Mr and Mrs X at the beginning of March. Mrs X said she was now working full time and she was unclear about the purpose of the visit.
  21. The IO completed their stage two complaint report in March 2019, six months after Mr and Mrs X complained. This upheld parts of their complaint and noted:
    • “there was… a delay in this assessment being completed”. “The guidance clearly states that it is ideal for the Transition Assessment to be completed by the 18th birthday”.
    • “The delay… was also impacted on by the fact that [Mr and Mrs X] felt unable to proceed until their complaint has been dealt with”.
    • “before and after [Mr Y’s] 18th birthday the support package previously agreed remained in place and continued with no changes made”.
    • “the Transition Assessment was not completed by the time the Annual Review… was due to take place”.
    • “there is no evidence that an incomplete Transition Assessment was being incorporated into [the EHC plan]”… Mr Y’s plan “was not signed off prior to the Transition Assessment being completed”.
    • “The investigation into the complaint could not find conclusive evidence that the assessment was conducted in a manner that does not follow the correct legal processes”. “It is also not clear which processes, procedures and information [Mr and Mrs X] are referring to in their complaint as they declined to meet with or talk to the Investigating Officer”.
    • The ISW “included and involved [Mr and Mrs X] in the assessment process” and “the parents’ views were included and incorporated in the assessment”.
  22. The IO recommended a letter of apology “to acknowledge their difficult experience and perceived harm suffered” and a meeting for all parties to confirm the agreed care package and EHC plan. The IO also recommended the Council make service improvements by creating a transition policy and starting assessments at the age of 16.
  23. The Council considered the investigation’s findings, then sent its adjudication letter to Mr and Mrs X. This said while the delay was compounded by Mr and
    Mrs X’s lack of engagement, it accepted they had a difficult experience. It offered £100 to recognise their time and trouble and distress. The Council acknowledged the transition process should start earlier and said it would ensure adult services became involved without further delay. The Council apologised.
  24. Mr and Mrs X felt the stage two response placed the blame on them, and it did not properly address their complaint. They told me that after Mr Y turned 18, they did not accept any children’s services as he was no longer a child. They did not use the direct payments they received during this time and told me the Council is welcome to have the money back. Mrs X says the lack of services past Mr Y’s 18th birthday has impacted her ability to work and on their other son’s ability to have a life around his studies. Mr Y’s case transferred to adult social care in April 2019. Mr and Mrs X have not accessed the adult care package for Mr Y.
  25. Mr Y’s placement has now started at a new college. Mr and Mrs X have made a new complaint to the Ombudsman, which we will consider separately as it relates to different issues and a different time period.

Analysis

  1. We would generally not re-investigate a complaint where the Council has considered it under the statutory children’s complaints procedures. However, where that investigation is flawed, we can look at events in more detail. In this case, the stage two investigation was flawed in the following ways:
    • It was delayed significantly, as the investigation report was completed six months (132 working days) after Mr and Mrs X asked the Council to escalate their complaint. The IO asked for clarification on their complaint statement two months after they had complained, with no substantive work before then.
    • The investigation report said some things were unclear and as Mr and Mrs X would not meet with the IO, it was not possible to get clarification. Mr and
      Mrs X said they did not want to meet with the IO when agreeing their statement of complaint. However, had the IO asked for clarification of specific issues later in the process, I cannot say whether Mr and Mrs X would have responded. The report said the IO could not get clarification on Mr and Mrs X’s reasons for no longer engaging after receiving the draft transition assessment, and which specific aspects of the law and guidance they felt the Council had not followed. These are things the IO could usefully have explored by asking Mr and Mrs X, but I cannot say what would have happened if the IO had attempted this.
    • The IO upheld parts of Mr and Mrs X’s complaint but did not explain how the faults they found impacted the family. Mr and Mrs X provided an explanation of the injustice they believed had been caused by fault, but the IO’s report treated this as another area of alleged fault. The IO made recommendations to the Council, but it is not clear how they related to their assessment of any injustice caused by fault. The report referred to Mr and Mrs X’s “perceived” harm. It did not properly consider how the faults it found affected the family as it did not determine whether there was actual harm. The Council’s adjudication letter, however, did recognise their injustice of time and trouble and stress, and offered an additional financial remedy. However, it is also not clear how the Council came to that figure.
  2. Due to the flaws in the Council’s stage two investigation, I have considered events in more detail. Despite the flaws listed above, my investigation supports the investigation’s findings. I have carefully considered injustice caused by fault, and the actions that should be recommended to remedy that injustice.
  3. The Council used an independent worker, in good faith, to try and avoid faults from previous events reoccurring. However, despite taking this step, there was a significant delay in the transition assessment being completed. The law says transition planning should start in year 9 for children with EHC plans. The Council should have begun the process much earlier. It held meetings in early 2017 but did not allocate an ISW until the end of 2017, six months before Mr Y’s 18th birthday. Once the transition assessment began, there were significant periods without substantive action.
  4. It is not, in itself, fault that the Council did not complete Mr Y’s assessment before his 18th birthday, as the law does not say it must. The Council ensured Mr Y’s children’s services remained available, which was the correct process to follow. The delays did not cause any gap in services for Mr Y, but they caused significant stress, inconvenience and frustration for Mr and Mrs X who had already lost confidence in the Council.
  5. 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. The transition assessment covered these areas. It considered Mr Y’s needs in accordance with relevant guidance and legislation. The ISW met Mr Y and discussed his needs with Mr and Mrs X. They do not feel the final document reflects Mr Y’s needs. However they did not tell the Council specifically what, within the assessment, they felt did not meet the requirements of the law and guidance. The Council incorporated the comments Mr and Mrs X provided into the final version.
  6. Mr Y’s annual review meeting went ahead in 2018 without the transition assessment having been completed, so the assessment was not properly integrated with the annual review process. The Council therefore decided to wait until the assessment was complete before issuing an amended EHC plan. The Council has not issued an amended EHC plan following the transition assessment being completed, and this is fault. The law requires the contents of this assessment to be incorporated into Mr Y’s EHC plan. However, the Council has made Mr Y’s adult care and support package available, based on its assessment, carried out without fault. This fault has therefore not caused Mr Y to miss out on support. The stage two investigation report recommended the family meet with the Council to complete the EHC plan, but there is no evidence this has happened. For the avoidance of doubt, this is not fault, and Mr and Mrs X would not have engaged with this until the complaint had been resolved. It is for the Council and the family to now make arrangements to implement the IO’s recommendation.
  7. Mr and Mrs X are concerned the Council referred to them not engaging with the process. They point out they attended several meetings, many necessitating time off work, and they had numerous telephone calls. The Council’s comment refers to the period after Mr and Mrs X received the draft transition assessment, and the subsequent complaint investigation. Mr and Mrs X felt the complaint investigation placed blame on them. They say it was unreasonable for the Council to expect them to take more time off to attend further meetings.
  8. The IO was entitled to highlight that Mr and Mrs X did not engage after receiving the draft transition assessment, and that this added to the timescales. Mr and
    Mrs X declined children’s services after Mr Y turned 18, and have declined the adult care package for Mr Y because they did not feel the assessment was completed properly. I cannot hold the Council responsible for Mr Y not having received a care package after he turned 18.

Agreed action

  1. The Council has agreed to make arrangements to implement the IO’s recommendations without delay. Within one month of my final decision, it will provide evidence of its offer of a meeting to Mr and Mrs X, its new transition policy and evidence of the steps it has taken to enable it to begin transition assessments earlier.
  2. In the absence of an up-to-date EHC plan, the Council has agreed to arrange to carry out a review. It will issue Mr and Mrs X a decision letter following its review in line with statutory processes, so that they can use their right of appeal if they wish to challenge the plan’s content. It will provide a copy of the review outcome letter to the Ombudsman within three months of my final decision.
  3. The Council has also agreed to pay a financial remedy to Mr and Mrs X to recognise their undue significant stress, inconvenience and frustration, which were caused by the Council’s faults. Its offer of £100 is not sufficient. It should pay them £300, which is at the top end of the amount we generally recommend. This is because the stress, inconvenience and frustration were severe and prolonged, and were exacerbated by the Council’s previous assurances it would change its practices.

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Final decision

  1. I found fault causing injustice, and I made recommendations to recognise that injustice. The Council has accepted my recommendations, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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