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Essex County Council (20 012 483)

Category : Adult care services > Transition from childrens services

Decision : Upheld

Decision date : 09 Nov 2021

The Ombudsman's final decision:

Summary: Miss D complains on behalf of her adult daughter about actions the Council took in relation to her special educational and care and support needs. There was fault, some of which caused injustice to Miss D’s daughter. The Council has agreed to make a payment to her.

The complaint

  1. Miss D complains on behalf of her adult daughter, Miss F, that the Council has failed to:
    • keep her Education Health and Care Plan up to date.
    • carry out an annual review or appoint an engagement facilitator.
    • secure adequate support from health and social care and refused to allow her to use direct payments for autism support.
    • put any support in place for when she leaves college, have transition into adulthood provision in her plan, or arrange for a Preparing For Adult Advisor,
    • put in place a designated case worker, or maintain contact with Miss F, herself and relevant professionals.
  2. As a result, Miss F has missed out on much needed support, causing stress and anxiety and she has had to constantly battle the Council to pursue the matter.

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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 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)
  3. 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 spoke to Miss D about her complaint and considered the information she sent, the Council’s response to my enquiries and:
    • The SEND Code of Practice
    • The Care and Support Statutory Guidance
  2. Miss D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  3. 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

Special educational needs

  1. A young person aged 19 to 25 with special educational needs (SEND) may have an Education, Health and Care Plan (EHC plan). This sets out the young person's needs and what arrangements should be made to meet them. The council is responsible for making sure that all the arrangements specified in the EHC plan are put in place. A council cannot discharge this duty by showing it tried but failed to put the support in place.
  2. Parents and young people have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in the plan, or the fact that no school or other provider is named.
  3. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
  4. The Council offers a SEND Engagement Facilitator to support children and young people with special educational needs and disabilities to be included within every aspect of their schools and settings. If a facilitator is requested, the Council will consider the child’s needs before deciding whether to agree to the request.

Annual reviews

  1. Councils must review an EHC Plan at least every 12 months. The annual review considers whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan. Schools and colleges are responsible for convening a review.
  2. Following the review, the school or college must send a report of the meeting to everyone invited within two weeks. The report must set out any recommendations to amend the EHC plan.
  3. Within four weeks of the review meeting the council must tell the parents or the young person whether it intends to keep the EHC plan as it is, amend it or end it. If it decides not to amend the plan or to end it, it must give details of the right of appeal to the SEND Tribunal.

Preparation for adulthood

  1. For young people with an EHC plan, preparation for adulthood should start in Year 9 as part of the annual review process. This includes looking at higher education, training or employment.
  2. Under the Care Act 2014 councils must carry out a social care needs transition assessment for the young person where there is likely to be a need for care and support after they turn 18. There is no set age when these should take place.

Impact of the COVID-19 pandemic

  1. 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’. This reminds councils that basic record keeping is vital during crisis working, and decision-making should be open and transparent even under emergency conditions. There should always be a clear audit trail of how and why decisions were made.
  2. On 23 March 2020, all schools and colleges were ordered to close, retaining some staff to provide education for the children of key workers and some 'vulnerable' children and young people, including those with an EHC plan. Colleges did not have to allow all young people with EHC plans to attend. Instead, the government asked councils to carry out risk assessments to determine whether their needs could be met at home and whether they would be safer there than attending an educational setting.
  3. The Coronavirus Act 2020 temporarily modified the duty in section 42 of the Children and Families Act 2014 to arrange or secure the SEN and health provision in an EHC plan. The change meant the absolute duty on a council to secure or arrange SEN provision was modified from 1 May to 31 July 2020 to a requirement to use “reasonable endeavours” to do so.
  4. The temporary changes in the law also gave councils greater flexibility in the timing of annual reviews where it was not practicable to complete one in the required timescales for a reason related to COVID-19. This change applied from 1 May to 25 September 2020.

Care and support needs

  1. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
  2. To be eligible for support, the person must have needs arising from a physical or mental impairment or illness, and because of those needs be unable to achieve two or more outcomes which affect their wellbeing, such as maintaining personal hygiene or accessing work, training, education or volunteering.
  3. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.

What happened

  1. Miss D's daughter, Miss F, has a diagnosis of autism spectrum disorder. She experiences anxiety and has been suicidal. She has therefore received some support from mental health services. Miss F has been attending a mainstream further and higher education college since September 2017 and turned 18 in late 2018.
  2. Miss F has an EHC plan which was issued in May 2019 following a Tribunal. The plan said Miss F should receive a range of provision such as key adult support and three hours of one-to-one support for maths and four hours for English. It also said staff should encourage her to use strategies to manage her anxiety and she “could be involved in therapeutic sessions” using the cognitive behavioural therapy approach.
  3. Miss D says the Council contacted her about Miss F’s one-to-one support for maths after the Tribunal but as it was the exam period, it was not an appropriate time to start. It was agreed that if Miss F did not pass she could have a tutor.
  4. The Tribunal ordered the Council to carry out a new assessment of Miss F’s care and support needs. On 9 May 2019 a social worker visited Miss F at home and started to assess her needs. Miss D said Miss F had not been receiving appropriate support and the family needed help with their housing situation. She said the EHC plan said Miss F should be receiving cognitive behavioural therapy but this had never been provided.
  5. Miss D emailed the Council on 5 June; she said it had been agreed that Miss F receive one-to-one maths tuition, a social care advocate, a personal budget for non-medicated therapies, a personal assistant, autism-based therapy and support when she left college, but she had heard nothing about this.
  6. The Council completed the care and support assessment on 28 June 2019. It found Miss F was not eligible for support as she only had needs in one area: developing and maintaining family or other personal relationships.
  7. The assessment found Miss F was able to travel independently but that new routes could cause her anxiety so she had missed appointments with mental health services. The Council therefore agreed to provide an interim direct payment to Miss F for 12 weeks. This was so she could employ someone to help her attend appointments and activities to support her mental and emotional wellbeing.
  8. Following the assessment, the Council made referrals to an advocacy service and to an organisation providing support for direct payments and employing a personal assistant. Miss D told the Council they had moved into temporary accommodation.
  9. The Council’s process required a financial assessment to have been completed before a direct payment could be set up. There is evidence the Council tried to contact Miss D about this over the next few months; one financial assessment form was returned undelivered in September. There is also evidence Miss D emailed the Council in July and August asking for updates and for a copy of the care and support assessment.
  10. In December 2019 the Council closed Miss F’s social care case as it had not heard from her or Miss D. The direct payment had not been set up as the financial assessment had not been completed.
  11. Contact resumed in March 2020 and Miss D provided a change of address. She said there had been no outcome of the previous care and support assessment; they had been offered a direct payment for therapeutic support but this had not been set up. She was concerned that Miss F had no social care support in place for when she left college in summer 2020.
  12. The national coronavirus lockdown then started and the college closed. Miss F started studying remotely at home. A new financial assessment form was posted to Miss D.
  13. The annual review of Miss F’s EHC plan was due in May 2020. It did not take place due to the COVID-19 lockdown. The College sent a “reasonable endeavours” plan to the Council in July 2020. This said Miss F would study at home and receive tutor support as needed.
  14. A social worker visited Miss D and Miss F at home on 4 August. This led to a meeting with NHS mental health services where it was agreed that the service would provide six one-to-one sessions with Miss F to help her with stress management, assertive communication and sleep hygiene.
  15. On 7 August the Council’s finance team advised that the financial assessment had now been completed; Miss F was not required to make any contribution to the cost of any care. Miss D then had three months of backdated direct payments which had not been used as the appointments had already happened.
  16. The social worker made several referrals for Miss F for: employment support, advocacy, a mental health family group conference, and the Council’s behaviour advice team. The social worker also referred Miss F for a learning disability diagnosis, but this was declined as her cognitive assessment in 2017 had not identified a learning disability.
  17. Miss D contacted the Council’s SEND team in September. She said she had not heard about Miss F’s EHC plan since May 2019 and had found out on social media that Miss F’s SEN case worker had left.

Miss D’s complaints

  1. Miss D made a formal complaint to the Council’s adult social care team on 26 November 2020. It replied in January 2021. The Council said its assessments had found that Miss F did not have eligible care needs as defined by the Care Act 2014; it had made referrals for support for her mental health. It had agreed to provide an interim direct payment, but there had been a significant delay in setting this up because the financial assessment had not been completed. The Council said Miss D could not use the backdated direct payments for alternative reasons without further assessment. It therefore asked its Learning Disability and Autism Team to complete a holistic review to determine how the funds could be used.
  2. Miss D complained to the Council’s SEN team in January 2021. She asked how the Council intended to support people with autism in line with its Autism Strategy.
  3. The Council replied on 9 February 2021. It apologised it had not made Miss D aware of the SEND staffing changes. The college would reschedule the outstanding annual review; the Council suggested it may be appropriate to include a Preparing for Adulthood Advisor in this. The Council would ask for input from the speech and language therapy service and said Miss D and Mis F could provide feedback on the Autism Strategy if they wished.
  4. Miss D came to the Ombudsman.

Events after complaining to the Ombudsman

  1. A further care and support assessment was carried out in May 2021. This again found Miss F was not eligible for social care support from the Council.
  2. The outstanding annual review was held on 17 May 2021. It did not recommend any changes to the EHC plan.
  3. Miss D had asked for an engagement facilitator to work with Miss D in February 2021. The Council agreed to this but one was not deployed. The Council says this was because following the annual review a preparing for adulthood advisor and SEND operations team were supporting Miss F to secure a place on a supported internship programme, so the facilitator was not needed. Miss F started the supported internship in September 2021.

My findings

Miss F’s special educational needs support

  1. I have first considered the provision for Miss F’s special educational needs as set out in her May 2019 EHC plan. I have seen no evidence this was not being provided before March 2020. Once colleges closed due to the COVID-19 pandemic in March 2020, the college agreed a plan that Miss F would study at home, with remote tutor support as needed. Although she could not receive all the provision in her EHC plan, the Council made reasonable endeavours to provide support to Miss F from March 2020 until July 2020 and there was no fault.
  2. The annual review of Miss F’s EHC plan was due in May 2020 but was not held because of the coronavirus lockdown. As there had been no annual review, there was no requirement to amend the EHC plan. The law allowed councils to not hold annual reviews where it was not practicable to complete for a reason related to COVID-19, there was therefore no fault.
  3. This flexibility on when annual reviews could be held ended in September 2020. However, I have seen no evidence of any attempts being made by the Council or college to convene an annual review until February 2021. I can see no reason why arrangements could not have been made sooner and this delay was fault. However, I do not consider this delay caused Miss F any significant injustice. This is because when the annual review was eventually held no changes were made to the EHC plan. So I cannot say that she missed out on any new support if the review had been held sooner.
  4. From September 2020 the Council again had a duty to ensure Miss F was receiving the provision in her plan. Although Miss F had stopped attending maths classes so was not receiving that support, there is evidence from the 2021 annual review that support was being provided and she was progressing towards her outcomes. I therefore do not find fault.
  5. The Council did not inform Miss F or Miss D when the SEND case worker changed. It has already apologised for this, which is a proportionate remedy for any injustice caused.

Transition to adulthood

  1. Miss D complains there was no transition to adulthood plan. The SEND Code of Practice says preparing for adulthood planning in the annual reviews should include support to prepare for higher (post 18) education and/or employment. I note that Miss F was already in post-16 education in a college of further and higher education. One of the outcomes for Miss F in her EHC plan is in relation to her employability and ability to live independently. This sets out the educational support she requires, for example, to be able to develop the skills to travel and shop independently. There was also discussion in the delayed annual review about Miss F’s provision after her college course ended. This is in line with what the Code requires and there is no fault.
  2. In addition, a transition assessment must be conducted for all those who are likely to have social care needs when they are 18 years old. I have considered the Council’s assessment below.

Miss F’s care and support needs

  1. Miss D complains Miss F has not received any care and support. It is not the Ombudsman's role to decide what, if any, care and support a person needs. That is the Council's role. My role is to consider if the Council has followed the correct process for establishing a person's needs and if it acted correctly when this process was complete. In doing this I have looked at what information the Council considered, and if it took account of the service user’s wishes. If the Council has considered all this information properly, I cannot find it at fault just because Miss F or Miss D disagree with the outcome of the assessment.
  2. I have therefore considered how the Council assessed Miss F’s needs in May to June 2019. The care and support assessment is detailed and describes Miss F’s needs. Miss F and Miss D were involved in the process. There is no evidence of fault in the way the assessment was carried out. I therefore cannot challenge its finding that Miss F was not eligible for support.
  3. The Council was not therefore under a duty to meet Miss F’s needs, but it agreed to provide her with an interim direct payment to enable her to attend mental health support appointments. There was a delay setting up the direct payment as the financial assessment had not been completed. By the time it was arranged the appointments had ended.
  4. I have carefully considered whether there was fault here. Councils have a duty to meet assessed eligible care needs, regardless of finances. So, it is fault if a financial assessment is a barrier to getting care in place. Miss F did not have assessed eligible care needs. However, the Council’s intention was to support Miss F and it failed to do so. This was fault and it caused injustice to Miss F as she was unable to attend the appointments which may have helped her mental health. I note that in August 2020 she was offered six one-to-one sessions by mental health services.
  5. In my draft decision I raised concerns that the Council’s process may be causing delay in the provision of care and support for others. I asked the Council to review its policy of waiting for the outcome of a financial assessment before putting a direct payment in place. In response the Council said its policy was to provide a managed service whilst a direct payment was organised, but it had failed to do this in Miss F’s case. It will consider the findings of this investigation at a leadership meeting to ensure lessons are learnt.
  6. The Council reviewed Miss F’s care and support needs in March 2020 and in May 2021. I have seen no evidence of fault in the way these reviews were carried out and there is therefore no fault in the Council’s decisions that Miss F is not eligible for care and support.
  7. There is no fault in the Council’s position that the backdated direct payment cannot be used for other purposes without an assessment finding this is necessary. Direct payments can only be used to meet needs identified in a care and support plan.
  8. Miss F requested an engagement facilitator in February 2021 and this was agreed, but it was not fault for the facilitator not to be deployed as this was superseded by the preparing for adulthood advisor.
  9. I have found that the delay in providing the direct payment in 2019 was fault which caused injustice to Miss F as she lost an opportunity to attend appointments which may have helped her mental health.
  10. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
  11. The Ombudsman’s guidance on remedies suggests a remedy payment for distress caused by missing an opportunity should be a moderate sum up to £300.

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Agreed action

  1. Within a month of my final decision, the Council should pay Miss F £300 to acknowledge the impact on her of losing the opportunity to attend mental health appointments in 2019 due to fault.

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Final decision

  1. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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