Decision : Upheld
Decision date : 23 Aug 2021
The Ombudsman's final decision:
Summary: Mr and Mrs X complained about poor transition planning for their daughter, Miss Y, when she moved from children’s to adult support services, including the withdrawal of support services. The Council was at fault for its inconsistent communication about whether it would extend the overnight stays arranged by children’s services beyond age 18, and for flaws in its complaints handling. The Council took appropriate steps to identify support for the family during the COVID-19 pandemic.
- Mr and Mrs X complained about the poor transition planning for their daughter, Miss Y, from children’s to adult services when she reached age 18 in December 2020. They said Miss Y received no support after turning 18 and were particularly unhappy that respite support care was withdrawn, which placed a significant strain on Mrs X, who is Miss Y’s main carer.
- Mr and Mrs X also complained about the Council’s complaints handling, which split the complaint between the two services despite it being about transition between them. This caused delay and mis-communication, putting them to extra time and trouble pursuing the Council.
The Ombudsman’s role and powers
- 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)
- 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)
- This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
- 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)
How I considered this complaint
- I considered:
- the information provided by Mr and Mrs X, and spoke to them by telephone;
- the information provided by the Council in response to my enquiries;
- relevant law and guidance, as set out below; and
- our guidance on remedies.
What I found
Relevant law and guidance
Education Health and Care (EHC) plans
- A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them. An EHC plan should be reviewed annually and may continue until the young person is aged 25 years. The Council is responsible for ensuring the support arrangements set out in the EHC plan are delivered.
- Under the Coronavirus Act 2020 the Secretary of State issued a notice that temporarily modified the absolute duty to secure or arrange educational provision set out in an EHC plan so that from 1 May to 31 July 2020, councils had a duty to use their “reasonable endeavours” to do so.
Chronically Sick and Disabled Persons Act 1970
- Section 2 of this Act sets out the services councils must make available to parents of disabled children. This includes short breaks and respite care. Short breaks can take many forms, including access to play schemes. Where a short break cannot take place at the child or young person’s home or in a community-based setting until the 1970 Act, the council can provide services under section 17 of the Children Act 1989.
Children Act 1989
- Section 17 of this Act says a child or young person is “in need” if they are disabled. Councils have a duty to assess the need and provide appropriate services to meet the assessed needs.
- Children and Adolescent Mental Health Services (CAMHS) is a health service for children and their families, who need support for mental health issues and learning development issues.
- Where there is a need for care and support for disabled children and young adults, the Council can provide or commission services to provide the support or it can make direct payments to the family so they can arrange care and support themselves.
Transition from children’s services to adult social care
- When a child reaches age 18, they are legally an adult and responsibility for meeting their needs moves from the council’s children services to its adult services. The legal basis for assessing their needs changes from the Children Act 1989 to the Care Act 2014. However, councils can decide to treat a children’s assessment as an adult assessment and can also carry out joint assessments.
- Statutory guidance says transition assessments should begin when the council can be reasonably confident about what the young person’s needs for care and support will look like when they turn 18. The purpose of the assessment is to provide the young person and their family with information so they know what to expect in future and can prepare for adulthood.
- The assessment must identify all the young person’s needs for care and support, and should identify the outcomes the young person wishes to achieve. The assessment should also consider whether the carer is able to continue in their caring role after the young person turns 18.
- After completing the transition assessment, the council must give an indication of which of their needs are likely to be “eligible needs” under the Care Act 2014, and which are not. This is so they and their carers can understand the care and support they are likely to receive and can plan accordingly. For those needs that are not “eligible” the council must provide information and advice on how those needs can be met.
- If transition assessment and planning is carried out effectively there should be no gaps in the provision of care and support. However, if adult care and support is not in place when the young person turns 18, the council must continue providing the services under children’s legislation until it is in place or until it decides the young person does not have “eligible needs”. (Care and Support Statutory Guidance, 2014, at paragraph 16.68)
- For young people with complex needs, the council may decide that children’s services are the best way to meet their needs even after they have turned 18, and the law allows them to do this.
Children’s statutory complaints process
- The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. The Council should respond to the complaint at stage 1 within 10 working days. At stage 2, the Council appoints an investigating officer to investigate the complaint, and an independent person, who is responsible for overseeing the investigation. Stage 2 should take 25 working days, with a maximum extension to 65 days. If the complainant remains unhappy they can ask for a stage 3 panel or refer the matter to us.
- The Guidance: Getting the best from complaints at paragraph 7.8.1 says where there are related complaints that do not fall within the statutory procedure, councils may wish to consider whether there are advantages in accepting these into a single investigation. Further, paragraph 7.8.2 says councils are “encouraged to offer a complete single response where possible”. Staff should agree who will take the lead, and they will liaise with other staff as needed and, where possible, provide a single reply that covers all aspects of the complaint.
- Mr and Mrs X live with their daughter, Miss Y, who has SEN. She had an EHC plan and a package of support from children’s social care. Miss Y needs a high level of care and support, and her behaviour can be challenging, particularly when her routine is disrupted. The Council initially contacted Mr and Mrs X about planning for the transition from children’s to adults’ services in December 2019, a year before she turned 18 in December 2020.
- The records show the Council carried out an assessment of Miss Y’s needs, which it completed in early February 2020. It asked officer 1 to oversee the transition to adult services. Officer 1 met with Mrs X regularly from mid March to discuss the support arrangements for Miss Y as an adult. She also met Miss Y at her school, to discuss her wishes and feelings.
- At the first home visit, in March 2020, Mrs X said she was concerned that services would change when Miss Y was 18. At this point, Miss Y was supported through:
- 48 over night short breaks per year with provider A;
- a session on alternative Saturdays run by charity B, funded using direct payments;
- 60 hours of individual support through the same charity, also paid for with direct payments; and
- 140 hours funded at a holiday club at school.
- discussed the case with their manager, who agreed to request approval for funding overnight respite from the private sector;
- contacted charity B, which confirmed it could continue to support Miss Y after she turned 18.
- confirmed to Mrs X the Council would carry out a carer’s assessment and booked a home visit to discuss her caring role. In the event, a home visit was not possible due to the COVID-19 pandemic so, to avoid delay, officer 1 sent a blank form to Mrs X to add her views.
- provided some resources to help Miss Y understand what was happening;
- agreed provider A would provide overnight stays to support the family, following Mrs X’s contact with provider A. These continued from May 2020, although some stays were cancelled due to the COVID-19 pandemic and the overall level of provision was significantly reduced;
- offered to look at additional support in the home, which Mrs X declined as she did not feel this would work due to Miss Y’s routines;
- carried out regular welfare checks by telephone.
In addition, provider A made regular welfare checks and gave Mrs X advice about managing Miss Y’s behaviour.
- In early May 2020, Miss Y returned to school on a part time basis, two days per week. There were also discussions about Miss Y moving to the adult group with charity B, which Mrs X declined, and charity B later agreed Miss Y could continue in the current group beyond 18. Also in May, officer 1 offered a virtual tour with provider C, which Mrs X declined because she did not think Miss Y engage with it.
- In mid June 2020, Mrs X reported during a welfare check that:
- Miss Y was doing well and still attending school two days per week;
- the individual support from charity B had stopped and Miss Y was missing it; and
- she still did not consider that extra support in the home would work.
Mrs X asked about holiday clubs but the Council was not able to say if they would be running due to COVID-19 restrictions.
- In early July 2020, Mrs X reported during a welfare check that Miss Y was enjoying school twice a week and various other activities and outings on other days. In mid July, Mrs X reported to officer 1 and provider A that Miss Y’s behaviour been escalating from some time.
- Also, in July 2020, Council records indicate it told Mr and Mrs X it would not agree to an extension of short break respite support from provider A after Miss Y was 18. It said this was because the focus should be on finding alternative provision from adult services. It also said, providers, including provider C, were starting to reopen after the COVID-19 restrictions were relaxed and beginning to take on new referrals.
- In mid August, Mrs X reported to provider A that the family holiday had been difficult due to Miss Y’s behaviour and she “did not know how much longer she could cope”. Provider A suggested she might want to consider supported living but Mrs X said she was afraid this would mean she would lose her daughter.
- Attempts to identify private providers in July and August were unsuccessful because no providers made bids. This was due to COVID-19 restrictions which reduced the services available and the various changes in restrictions made it difficult for them to plan for future services. ln mid August, officer 1 said if there were no providers interested by late August the Council would again discuss “our contingency plan” of extending provider A support.
- In late August, the Council’s record indicates Mrs X reported:
- Miss Y was physically abusive to both parents;
- the individual support through charity B had stopped as the staff member could not continue providing the service;
- Miss Y would soon be 18, at which point the current support package would stop and Mrs X was unsure what support Miss Y will transition to;
- the family were unhappy that their request for a three month extension to overnight respite at provider A after Miss Y turned 18 had been refused;
- an application had been made for a college place for September 2021 but this would be for three days per week, and support would be needed for the other two days;
- the family had no support network and were now in crisis.
- Home based support to give Mrs X a break from her caring role. This was not considered beneficial at that time.
- The staff member providing individual support through charity B could not continue. This service was funded through direct payments and Mrs X would contact the charity to see if they could identify a personal assistant to support Miss Y.
- Continuation of the children’s support group beyond Miss Y’s 18th birthday.
- Asking Mrs X to reconsider the Council’s internal short breaks service.
- Officer 1 agreed to ask if support from provider A could be extended, since no progress had been made in identifying overnight respite provision. The Council said later in September this would not be considered until the family had explored other options, including support from its internal providers.
- Provider A was no longer allowing extensions beyond age 18 for any clients. Officer 1 had asked provider A to explain its position to Mrs X.
- Shared lives arrangements but Mrs X did not consider this was suitable for Miss Y as she needed peer interaction.
- Possible support from an autism charity.
- Home based care and support, which Mrs X refused because she said Miss Y had a well-established routine after school and support in the evenings would not be beneficial as Miss X would be too tired.
- Mrs X had not identified a personal assistant and officer 1 gave advice on where to advertise for one.
- expressed frustration that the complaints responses were by email and managers had not tried to speak to them by telephone;
- said they did not consider the options suggested met Miss Y’s needs; and
- maintained a three month extension with provider A was the best option for Miss Y.
The record shows the Council:
- said it had agreed an extension for one month and explained why it could not agree a further extension; and
- explained the support available and suggested they met with officer 1 to discuss that in more detail and finalise the support plan.
Mr X said the meeting was a disgrace and no-one was listening to them. He says the Council did not explain why it could not agree to an extension.
- Following the meeting, the Council wrote to set out what had been discussed and answer some questions Mr and Mrs X had raised, which had not been addressed during the meeting due to a lack of time. Mr and Mrs X remained unhappy. However, the Council refused to consider the complaint further at stage 2 of its complaints process because that could not achieve the outcome they wanted, namely for the Council to reverse its decision about the extension. It said it would respond separately to concerns they raised about adult services.
- Officer 1 moved to a new role in late December 2020. In mid December, she held a transfer meeting with her manager, officer 3, who took on responsibility for the transition planning from January 2021.
- Officer 3 had regular discussions with Mrs X about support for Miss Y from January 2021 onwards and the records show she was proactive in considering various ways to support Miss Y and the family, and arranging the funding for support. However, efforts to put the support in place were hampered by further restrictions due to COVID-19 and a third national lockdown. For example, due to COVID-19 restrictions provider D was not able to do the planned taster visit for Miss Y with her mother accompanying her – Miss Y would have had to attend alone, even though she had not been there before or met staff there. In the event, it was decided that due to levels of infection the visit should be postponed. Without taster visits, it was not possible to book overnight stays.
- In March 2021 Miss Y was able to return to school and the weekend sessions with charity B. There were also visits to providers C, D and E. Following these visits Mrs X was able to book some sessions with providers D and E. However, further discussions with the family’s preferred provider, provider C, indicated that it could not meet Miss Y’s needs, largely due to changes to its services in response to the COVID-19 pandemic. Mrs X found a personal assistant through charity B in late February, funding arrangements were agreed in March and support began in early April.
- Therefore, by early May 2021 there were some services in place, although the overnight stays were not at the level provided before Miss Y reached age 18 nor were they at the level Mr and Mrs X felt was appropriate. There are ongoing discussions with the Council about Miss Y’s support plan and, in particular, the number of overnight stays.
- Mr and Mrs X complained in early October 2020 about the Council’s decision not to agree an extension of the overnight stays beyond December 2020. The Council accepted there was some mis-communication about this and apologised in late October 2020. It explained that provider A could not extend further as its services were reduced due to the COVID-19 pandemic.
- In a further letter in early November 2020, the Council said although it had originally agreed to consider a three month extension, it was important to also consider other options with adult services and that remained its position. In recognition of the family’s concerns the provision had been extended by one month but it could not commit to a further extension.
- Mr and Mrs X remained unhappy with the decision not to extend the provision. The Council arranged an online meeting to discuss their outstanding concerns. At the meeting and subsequently Mr and Mrs X raised concerns about the transition process, poor communication and a failure to identify appropriate adult services for Miss Y. These issues were considered by the Council using its adult complaints process.
- Mr and Mrs X remained unhappy with the outcome of that process and were also unhappy that their concerns were considered separately by children’s and adults services, particularly given the concerns were about transition between the two.
- In response to my enquiries, the Council said there was some confusion between the officers involved about what had been agreed about extending the provision with provider A, which was clarified at the complaints meeting and then confirmed in writing. It did not consider it was appropriate to use the statutory children’s complaints process because its priority was to get services in place for Miss Y and it did not consider the statutory process could achieve a meaningful outcome in a timely way.
- The Council said the ongoing concerns raised by Mr and Mrs X were about its preparing for adulthood team, which falls under its adult services and therefore it considered those using its adult services complaints process. Its usual timescale for adult complaints is to respond within 20 working days. It accepts it did not do that on this occasion for which it has already apologised to Mr and Mrs X but is happy to do so again.
- In terms of the timescales, the Council told Mr and Mrs X on 4 December 2020 it would address the additional concerns using its adult services complaints process. Mr and Mrs X provided further information on 11 and 21 December 2020. The Council prepared a detailed report of its investigation, dated 21 January 2021, and provided a complaint response letter on 2 February 2021.
- The Council contacted the family a year before Miss Y turned 18 to start planning for the transition to adult services. An assessment of her eligible needs was completed in early February 2020 and officer 1 was assigned to work with the family soon after that. I am satisfied the Council began the transition process in good time and was not at fault.
- The family were receiving a significant package of support for Miss Y through children’s services and Mrs X was understandably worried about losing support she relied on when Miss Y turned 18. Officer 1 explained in March 2020 that support may be different once Miss Y was an adult and explained the options available. She suggested visits to Council providers of adult overnight stays but Mrs X did not want to explore these. Mrs X says she had already done her own research before the transition process began. Mrs X’s preferred provider was provider C and the Council confirmed funding for private providers without delay. I find not fault with the way the Council handled the transition at this stage.
- In late March 2020, restrictions in response to the COVID-19 pandemic meant that:
- private care providers were not bidding for services as they had had to reduce the services offered. Provider C did not start taking new referrals until October 2020;
- visits to adult care providers could not take place. Council providers of adult overnight stays could not take new referrals until September 2020;
- provider A continued to offer overnight stays to Miss Y but not at the previous level;
- some services were available but due to the risks of COVID-19, the family felt unable to access them.
- ensuring as many overnight stays with provider A as possible;
- welfare checks and telephone support;
- considering how direct payments could be used to provide support in the home; and
- referrals to CAMHS and the children’s disability team.
I am satisfied the Council took sufficient steps to support the family at this difficult time and was not at fault.
- From September to December 2020, the Council made little progress in arranging adult services for Miss Y, although officer 1 continued to discuss options with Mrs X and Mrs X did visit provider D. The records suggest both sides became distracted by the dispute over whether provider A could continue to provide overnight stays beyond age 18, which I will discuss below.
- From January 2021, officer 3 took over the case. Officer 3 discussed the support options with Mrs X and pursued them as best they could. However, once again, COVID-19 restrictions meant progress was slow because services were either not able to offer visits or infection rates were such that it was too risky for Miss Y to attend. I cannot criticise the Council for events outside its control and am satisfied the case was progressed as well as could be expected between January and May 2021.
Requested extension to provider A support
- The family requested an extension to the overnight stays with provider A at an early stage. Mrs X said this was agreed by provider A in principle in March 2020, but this was a conversation and there was no written record to confirm this.
- Following the formal complaint in October 2020, the Council accepted there were problems with its communication about this due to confusion between its adults and children’s teams about what each had discussed and agreed. The records show that although the Council’s position in March was that adult services should be considered before any extension to children’s services was discussed, and this remained the position, although its communication about the possible extension was inconsistent. At various points the Council indicated it was considering the three month extension or at least it was there in the background as a contingency.
- It was not fault for the Council to say it would not consider an extension until the family had explored adult options. Although the family hoped that after the three months’ extension services would be available through their preferred provider, provider C, there was never any guarantee that would be the case so it was sensible to consider other options as well. However, it was at fault for not communicating its position clearly and consistently between March and mid November 2020. It would also have been better if it had been more proactive in addressing the family’s concerns about its own adult services but I cannot say this would have changed the family’s views and therefore stop short of saying this was further fault.
- It was not fault for the Council to say it would not consider an extension beyond December 2020, given that provider A’s capacity had been significantly reduced as a result of COVID-19 restrictions, other children were waiting for the service for whom no alternative service was available, and adult services were available for Miss Y that the Council considered would meet her needs.
Delivery of support in Miss Y’s EHC plans from April 2020
- Miss Y’s EHC plan dated 7 April 2020 set out in section H1 that she had 144 short break hours and 140 holiday club hours. Section H2 set out her 48 overnight stays with provider A. This plan was effective until 11 February 2021 when a final amended EHC plan was issued.
- The records show that provider A continued to provide overnight stays until late December 2020, although some planned stays were cancelled due to COVID-19 so the family did not get the full 48 overnight stays in that period. In normal circumstances, the provision should have continued until an amended EHC plan was issued in February 2021 because the support and the provider were set out in the April 2020 EHC plan. However, this was not possible due to the impact of the pandemic, as explained above, and since it resulted from factors largely outside the Council’s control I have not found fault with the Council.
- The records also show that other services Miss Y had previously used were not always available to her during this period and that where services were available she did not always attend them because of the COVID-19 risks. Again, I cannot say this was fault by the Council. I am satisfied the Council did what it reasonably could to ensure support was provided.
- The amended EHC plan issued in February 2021 did not include any information about social care support in sections H1 and H2. The family say they did not accept that plan and a revised plan was issued, which included the same social care support as before. However, it was not possible by then for the support from Provider A to be delivered for the reasons discussed above and there is nothing more I could achieve by pursuing this further.
- I consider the complaint about refusing to extend the provision with provider A comes within the scope of the statutory children’s complaints process. I have set out the timescales for this at paragraph 21 above.
- The extension at stage 2 to 65 working days should be in exceptional cases and not the standard timescale. Therefore, I am not persuaded by the argument that it should not be used where a timely outcome is needed, although I do acknowledge there are often delays in the process. I am also not persuaded that the need to prioritise identifying services for Miss Y was a reason not to use the process because it should be possible to continue to provide such services whilst the complaint process is ongoing. Therefore, I consider the failure to consider the complaint using the children’s statutory process was fault.
- Although the Council did not have to use the statutory children’s process for the adult services complaints, it should consider providing a single response. I have seen no evidence to show the Council considered this and that was fault.
- However, I acknowledge the Council did respond to all the complaints raised, including preparing a detailed investigation report on the adult services aspects, although I note Mr and Mrs X remain unhappy with the outcome. Further, the Council did arrange an online meeting to discuss their concerns in November 2020. Therefore, I consider the injustice caused to the family is limited to the uncertainty about whether a different process, combining all the concerns raised, would have delivered a different outcome or a quicker outcome, and the additional frustration and time and trouble caused to them in dealing with several teams (children’s services, adults services and the complaints team).
- The records show Miss Y’s needs were met throughout by support services or by her family and I do not consider she suffered an injustice as a result of the faults I have identified. Therefore, I have not recommended a remedy for her.
- The Council will, within one month of the date of the final decision:
- apologise to Mr and Mrs X for its
b) pay them £300 for the uncertainty and frustration caused.
- The Council will, within three months of the date of the final decision, consider the lessons it could learn from this case in terms of joint working between its children’s and adults teams, and how it will ensure that complaints about children’s services are considered using the children’s statutory process. It will report to us with the outcome of this work.
- I have complete my investigation. I have found fault causing personal injustice. I have recommended action to remedy the injustice caused.
- 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.
Investigator's decision on behalf of the Ombudsman