Summary: Mrs X complained the Council refused to carry out social care assessments and did not provide advice on her son’s social care needs for the review of his Education, Health and Care plan. She also complained about poor communication and complaints handling, which caused frustration and delays, and put her to avoidable time and trouble pursuing the Council. There were failings in the communications and complaints handling. The Council should apologise and make a payment to remedy the injustice caused.

The complaint

1. Mrs X complained the Council:
1. did not provide social care information for the annual review of Y’s Education, Health and Care (EHC) plan, and the social worker refused to attend the meeting;
2. refused to carry out a transition to adulthood assessment for her son, Y, under section 58 of the Care Act 2014 because he had not turned 17 years and six months, despite the Council having previously identified care needs under children’s legislation;
3. refused to carry out a disabled children’s section 17 assessment because it said Y did not meet the criteria for its disabled children’s team. It did not explain its reasons for deciding Y did not meet the published criteria; and
4. did not respond to emails sent to social care and, when Mrs X complained about this, could not locate the emails.
2. Mrs X said that, as a result of these failings, Y’s social care needs, which had already been set out in his EHC plan, were not met. In particular, Y did not have support to access the community with adults other than his parents.

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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. If we are satisfied with an organisation’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)
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.

Back to top

How I considered this complaint

9. I considered:
• the information Mrs X provided and spoke to her about the complaint;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
10. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

Back to top

What I found

Relevant law and guidance

Disabled children

11. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
12. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in section 2.
13. Services which can be provided under section 2 CSDPA include respite care; and recreational/educational facilities including community based short breaks.
14. If a council is satisfied it is ‘necessary’ to provide support services under section 2 of the CSDPA then services must be provided regardless of the council’s resources.
15. Assessments should take account of the needs of the whole family. While some services may be offered directly to the disabled child, services may also be offered under section 17 to parents or siblings.
16. The Courts have found (R (L and P) v Warwickshire CC, 2015) that not every disabled child will necessarily require a full assessment by a social worker. Those with lower-level needs may be assessed via Early Help. Councils should be able to demonstrate how they have determined the level of need.

Personal budget

17. Councils will set a budget to cover the costs of arranging support for a child or young person. They can arrange that support themselves or alternatively can make payments, known as direct payments, to their parents to enable the parents to arrange the support services for their child themselves.

Carers of disabled children

18. The Children Act 1989 (as amended by the Children and Families Act 2014) places specific duties on councils to assess the needs of carers with parental responsibility for disabled children as well as young carers. Councils have an obligation to assess parent carers on the ‘appearance of need’ (Children Act 1989, section 17ZD/E), or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.

Education, Health and Care (EHC) plans

19. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. There is a right of appeal to the SEND Tribunal in relation to the content of a final EHC plan. We cannot direct changes to the support set out in an EHC plan, only the Tribunal can do this.
20. EHC plans should be reviewed at least annually. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
21. For young people with an EHC plan, preparation for transition to adulthood must begin from year 9 (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate. 

Transition from children to adult services

22. When a child reaches 18 years of age, 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.
23. 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. However, as set out in paragraph 21, for a young person with an EHC plan, the preparation for adulthood should begin in year 9 (age 13 to 14). 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.

Children’s statutory complaints process

24. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.

This Council's corporate complaints procedure

25. The Council operates a two stage corporate complaints process. It aims to respond to stage 1 complaints within 20 working days and stage 2 complaints within a further 25 working days. It may take up to 65 working days in particularly complex cases.

This Council's Disabled Children and Young Persons (DCYP) team

26. The Council’s threshold document says its DCYP team is responsible for children who have severe, substantial, and permanent disabilities, or life threatening or life limiting conditions. It can also provide advice to other services where children do not meet the threshold criteria. It says appropriate referrals to the team would include:
• children who have a severe, substantial, and permanent disability or life threatening or life limiting illnesses;
• children who have severe learning disabilities and attend either a special school for children with severe learning disabilities or are educated therapeutically at home;
• children with physical disabilities that significantly impact on the child’s ability to access the community, that require a high level of personal care support, without which their independence would be significantly restricted;
• children and young people with severe learning disabilities;
• children and young people who fall on the severe end of the Autism spectrum with associated learning disability which has a significant impact on their communication needs, social and behavioural development; and
• children and young people with severe global developmental delay which seriously impedes their functioning.

What happened

27. Y has an EHC plan and attends a special school. He was due to move from secondary to post-16 education in September 2022.
28. Section H of Y’s EHC plan, which sets out the social care support Y needed, stated he will have an agreed budget to enable him to “access activities in his community with increasing independence” and appropriate equipment and supervision to keep him safe at home and on school residential trips. It said his needs could be met through the “Local Offer”, which refers to services available locally to children and young people with disabilities.

Annual review

29. In November 2021 Mrs X asked if a social worker from children’s social care could attend the annual review meeting for Y’s EHC plan. Mrs X told me this was needed because there were social care needs identified in Y’s EHC plan for which there was no support provided, including a need for support for Y to access the community independently of his parents. She said she was told the personal budget set out in the EHC plan could be used to meet that need but she disagreed because she understood that related to a short break scheme intended to provide respite for carers. She also considered Y needed support for his transition to post 16 education.
30. The Council said that, as there was no current involvement from children’s social care, a social worker would not attend the meeting. It said Mrs X could ask the school to make a referral if Y needed additional support for the transition to post-16 education.
31. In response to my enquiries, the Council provided a social care assessment for Y completed in January 2021, which concluded there were no unmet social care needs and therefore no further role for social care. It confirmed there was no open case in the child in need team and no allocated social worker for Y at the time of the request.

Request for transition to adulthood assessment

32. Mrs X asked for a transition to adulthood assessment in late November 2021. She considered Y should have an assessment because he had an EHC plan, which requires the Council to start planning for adulthood from school year 9.
33. The Council did not respond. Mrs X asked again on 19 December 2021. She said she had since heard the Council’s policy was not to carry out an assessment until the young person was 17 years and six months old. She said if the Council would not carry out an adult social care assessment, she wanted it to carry out a disabled child assessment.
34. Mrs X asked for updates on 22 December and 7 January but did not receive a reply and complained on 14 January 2022. In its stage 1 response, the Council said it would resubmit the request for an assessment.
35. Mrs X was unhappy with the complaint response and asked the Council to respond to further questions. She said:
• the Care Act 2014 required the Council to carry out an assessment if a disabled child was likely to have need for care and support after turning 18;
• the statutory guidance said the assessment should be carried out at a time that would be “of significant benefit” to the child; and
• the Council should provide reasons for refusing.
36. In its stage 2 complaint response, the Council said:
• transition planning could start at age 15 where the child was already receiving support from children’s social care, but Y was not receiving such support;
• an assessment in January 2021 had determined Y did not meet the threshold for social care; and
• given the nature of adolescent development, early assessment was not always fruitful and it was preferable to assess as close as possible to the transition point.

Disabled child assessment

37. On 19 December 2021, Mrs X said if the Council would not carry out a transition to adulthood assessment, she wanted it to carry out a section 17 disabled child assessment, to be completed by someone with experience of disability and Y’s complex needs. She said Y’s social care needs were set out in his EHC plan but there was no support in the plan to meet them.
38. As mentioned, the Council did not respond to the request or her chaser emails, so she complained on 14 January. On 8 February the Council said it would resubmit the request for an assessment.
39. Mrs X said the Council initially resubmitted the referral but then refused to carry out a disabled child assessment on the basis that the January 2021 assessment had not identified any section 17 needs that required services, and Y did not meet the threshold for the disabled children’s team. It later agreed another team would carry out a social care assessment, which it completed in April 2022. Mrs X is unhappy with that assessment and has made a separate complaint about that. In June 2022 the Council again confirmed Y did not meet the criteria for the DCYP team.
40. Mrs X considers Y met the criteria because he has significant physical disabilities and learning difficulties (as set out in his EHC plan). This includes using a wheelchair at times, attending a special school and the need for one-to-one support from an adult outside the home. She said the Council told her that assessments carried out by other teams were not completed by social workers with experience of disabilities and therefore she believes such assessments were not sufficiently comprehensive.
41. In response to my enquiries, the Council provided a copy of the January 2021 assessment, which confirms it considered whether Y met the criteria for support from the DCYP team at that stage and that there was input into that assessment from a social worker from the DCYP team. The Council also said a social worker from the DCYP team visited Y in August 2022 and spoke to Mrs X following that visit. Mrs X provided a copy of that assessment, which confirms this. The Council said its officers were clear throughout that Y’s level of support need did not fit the criteria for the DCYP team. Mrs X does not agree the Council’s communications about this were clear.

Communications and complaints handling

42. Mrs X complained on 14 January 2022. She set out the emails the Council had not responded to and said she wanted the Council to explain its reasons for not carrying out the assessments she requested.
43. The Council replied at stage 1 on 8 February. It apologised if Mrs X felt her concerns were not addressed properly and said:
• it had reviewed the request for an assessment and apologised for not giving Mrs X feedback. It would resubmit the request and send an update; and
• there was no record of the chaser emails being received by the relevant team but it could not explain why.
44. Mrs X asked the Council to respond to further questions in early February and the Council considered the complaint at stage 2 of the complaints process. It responded in late April to each of the complaints she raised. It upheld her complaint about failing to respond to emails and a delay in considering the request for an assessment. It said the issues were caused by problems with emails, which had to be manually added to its case management system. It explained it had changed its process and now only accepts contact by telephone or secure portal, to ensure information is correctly recorded to enable it to respond. In response to the draft decision Mrs X said the Council was not adhering to this as she had continued to send emails.
45. At stage 2, the Council also accepted its stage 1 complaint response was not adequate. It apologised and offered Mrs X a payment of £100 for the initial delay and a further £50 for her time and trouble pursuing it. Mrs X did not tell the Council she accepted the offer, so the payment was not made. Instead, she complained to us.
46. I asked the Council to explain why it had not considered this complaint under the children’s statutory complaints process. It said this was because there was no allocated social worker at the time, and it considered the complaint related mainly to support provided under Y’s EHC plan. It added that this approach facilitated the swift escalation of the complaint to stage 2 of the complaints process, following which there was a further review of ongoing concerns. I am aware that, as a result of the complaint, the Council carried out a further social care assessment in April 2022, which is currently the subject of a separate complaint being investigated under the children’s statutory complaints process.

Back to top

My findings

Annual review

47. Government guidance says EHC plans must be reviewed annually. The annual reviews are usually arranged by the young person’s school. The guidance says a social care representative must be invited to the review meeting, although there is no absolute requirement for a representative to attend. Further, any advice and information gathered from those invited should be shared before the meeting.
48. In this case, the request for a social care representative to attend the meeting was declined on the grounds there was no open case in children’s social care. Whilst I understand Mrs X’s reasons for wanting a social worker to attend, it was not fault for the Council to decline to do so in the circumstances.
49. I have not seen a request for information and advice but, given there was no social care involvement following the completion of the assessment in January 2021, it is unlikely there was any further advice to share. It was open to Mrs X to share the January 2021 assessment if she wished to do so. Although it is good practice to provide a report from social care to the annual review, the failure to do so on this occasion is not sufficiently serious to amount to fault.
50. Mrs X wanted social care to input into Y’s annual review because she felt Y’s EHC plan identified social care needs that the provision in the plan did not meet. It was the Council’s view that the provision in the EHC plan was sufficient to meet Y’s needs. I cannot say whether the provision was sufficient to meet Y’s needs but I am aware the Council has carried out further assessments to consider this.

Transition to adulthood assessment

51. The Care Act 2014 requires the Council to carry out an assessment (a transition to adulthood assessment) if Y is likely to have a need for care and support after turning 18. Government guidance says the assessment should be carried out at a time that would be of significant benefit to the young person.
52. In this case, the Council had carried out a children’s social care assessment in January 2021, which concluded that Y did not have any unmet social care needs. Mrs X did not provide evidence to show that Y’s needs had significantly changed between then and November 2021. Although there was a requirement to prepare for adulthood under Y’s EHC plan, which would be considered as part of the annual reviews, the Council was entitled to decide that a transition to adulthood assessment was not needed at that point. It was not at fault.
53. That said, the Council should have confirmed its decision not to carry out an assessment in November 2021 and explain its reasons, which it did not do until its stage 2 complaint response in April 2022. I will consider this further under the heading communications and complaints handling, below.

Disabled child assessment

54. Mrs X requested a social care assessment for Y. The Council was entitled to decide which team should carry out that assessment. Although it accepted Y has physical disabilities and learning needs, it did not consider his support needs met the criteria for its DCYP team. There was no fault in the way it considered this.
55. Mrs X is concerned that assessments carried out by other teams were inferior because the social workers completing them did not have disability experience. The criteria for the DCYP team say it provides advice to other teams, and I can see from the assessments carried out in January 2021 and August 2022, that there was appropriate input from the DCYP team. The Council was not at fault.

Communications and complaints handling

56. The Council failed to respond to Mrs X’s requests for a transition to adulthood assessment in November and December 2021. After she complained it “resubmitted” those requests. It also failed to respond to her requests for updates in December 2021 and January 2022. In its complaint response it said it had no record of receiving these. At stage 2, it accepted its stage 1 complaint response was inadequate and set out the steps it had taken to address the problem with receipt of emails.
57. The failure to respond and poor stage 1 response were fault. These faults caused Mrs X frustration, and avoidable time and trouble pursuing the matter. The Council has apologised and offered to pay her £150, which is an appropriate remedy for the injustice caused. There was also a delay of six weeks in responding to the complaint at stage 2, which was further fault, for which the Council should apologise.
58. Arguably the complaint should have been considered under the children’s statutory complaints process as it did include concerns about children’s social care. However, in the circumstances, this is not sufficiently serious that it amounts to fault. In any case, it has not caused Mrs X an injustice as her complaint was considered by the Council and by us. In addition, I note that her further complaint about the social care assessment in April 2022 is being considered using the children’s statutory complaints process, which is appropriate.

Back to top

Agreed action

59. The Council will, within one month of the date of the final decision:
• apologise to Mrs X for the delay in responding to this complaint at stage 2 of its process; and
• pay her £150 for the delay, frustration, and avoidable time and trouble caused, in line with its offer in its stage 2 complaint response.

Back to top

Final decision

60. I have completed my investigation. I have found fault causing personal injustice. I have recommended action to remedy that injustice. The Council has already taken steps to address the communication issues so no further recommendations are needed.

Back to top

Investigator's decision on behalf of the Ombudsman