Summary: Mr X complained on behalf of his former foster child Mr C. He said the Council had failed to carry out a proper assessment of Mr C under the Mental Capacity Act. He said it also failed to follow statutory guidelines when finalising Mr C’s Education, Health and Social Care Plan or consider the views of Mr C’s family. We find fault with the Council for failing to adhere to the statutory time limits when finalising Mr C’s Education, Health, and Care Plan. It failed to complete a Mental Capacity Assessment with Mr C about his education placement after September 2021. We also find fault with the Council for failing to respond to Mr X’s complaint within its prescribed time limits. The Council has agreed to remedy the injustice caused.

The complaint

1. Mr X represents his former foster child Mr C, he complains the Council failed to:

• Properly assess Mr C using the Mental Capacity Act (MCA)
• Meet statutory time limits when issuing Mr C’s final amended Education, Health, and Care Plan (EHCP).
• Consult with Mr X or his wife or get their views on a placement for Mr C when drafting the final amended EHCP.

2. Mr X said this has prevented Mr C from moving to a suitable adult residential environment. He also said it had affected his own life, preventing him moving forward. Mr X also said this has caused his family distress and upset Mr C. Mr X said it has caused him frustration, confusion and put him to the time and trouble of complaining.

Back to top

What I have and have not investigated

3. I am aware Mr X has appealed to the SEND tribunal. Therefore, I have no jurisdiction to investigate Mr X’s complaint about the named educational placement or content of Mr C’s EHCP.
4. Mr X raised issues about the Council’s handling of Mr C’s phased transfer. This part of the complaint is over 12 months old. On reviewing the evidence, I cannot see any reason why Mr X did not bring this complaint to us earlier. Therefore, I will not look at this part of the complaint now.

The Ombudsman’s role and powers

5. 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)
6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

10. 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)
11. 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

12. I have spoken to Mr X about the complaint and considered all documentation submitted. I have also considered all the documentation submitted by the Council.
13. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

Back to top

What I found

Legislation and Guidance

14. A child or young person with special educational needs may have an EHCP. This sets out the child or young person’s needs and arrangements for meeting them.
15. Councils have a duty to arrange the special educational provision set out in an EHCP. (Children and Families Act 2014 section 42)
16. The Special Educational Needs and Disability Tribunal (SEND) considers appeals against council decisions about special educational needs provision.
17. The Council is responsible for securing the named special educational provision for the child or young person. This means making sure that arrangements named in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
18. These duties are non-delegable. Other than for the period when the emergency measures under the Coronavirus Act 2020 were in place, a council cannot discharge its duty by showing it tried but failed to put the support in place.

Special Educational Needs and Disability (SEND) Code of Practice 0-25: Statutory Guidance.

19. For young people moving between post-16 institutions, the Council should normally complete the review process by 31 March where a young person is expected to transfer to a new institution in the new academic year. However, transfers between post-16 institutions may take place at different times of the year and the review process should take account of this. In all cases, where it is proposed that a young person is to transfer between one post-16 institution and another within the following 12 months, the local authority must review and amend, where necessary, the young person’s EHCP at least five months before the transfer takes place.

The Mental Capacity Act (MCA)

20. The MCA aims to protect people over the age of 16 years, who for any reason cannot make decisions for themselves. It provides clear guidance for carers and professionals about who can take decisions in various situations.
21. The following five principles apply for the purposes of the act:

• A person must be assumed to have capacity unless it is established that he lacks capacity.
• A person is not to be treated as unable to make a decision unless practicable steps to help him do so have been taken without success.
• A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
• An act done, or decision made, under this act for or on behalf of the person who lacks capacity must be done, or made, in his best interests.
• Before the act is done, or the decision made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

22. Anyone can carry out a mental capacity assessment. To be correct it should be carried out by someone who is involved in supporting the person, and who will be responsible for making a decision if the person cannot do so. This could be a friend or relative, but could also be, a GP or nurse, a social or support worker, or a deputy appointed by the Court of Protection. If the mental capacity assessment is relevant to a major decision, it is best practice for that assessment to be carried out by a suitable professional who will provide a report.

Independent Mental Capacity Advocate (IMCA)

23. An IMCA is someone appointed to support a person who is assessed as lacking capacity to make certain decisions about changes in accommodation or medical treatment. An IMCA is usually appointed by a local authority or the NHS.

Achieving for Children/Shared Lives

24. Shared lives carers work specifically with disabled people, autistic people, and young adults with support needs. Dependant on what care is needed the arrangement can be short or long term. A shared lives carer is paid and needs to register as self-employed, before being approved by the Council.

The Council’s complaint process

25. The Council has a two-stage complaint process. It aims to respond within 15 working days under stage one. It aims to respond to escalated complaints under its stage two procedures within 20 working days.

What happened

26. I have set out a summary of the key events below. It is not meant to show everything that happened.
27. Mr C is a young adult with complex needs. He has a diagnosis of autistic spectrum disorder (ASD), epilepsy and severe learning disabilities. Mr C lacks capacity to decide where he lives. The Council are maintaining an EHCP for him.
28. Mr and Mrs X have fostered Mr C since he was only a few weeks old. He views them as his mother and father. When Mr C turned 18 his foster placement changed to a shared lives placement. Mr C currently lives with Mr and Mrs X.
29. Mr C was scheduled to move between post-16 educational placements in September 2021.

Mr C’s Final Amended EHCP May 2021

30. The Council wrote to Mr and Mrs X in October 2020. It asked them to consider the next steps for Mr C’s education to help them prepare for a phased transition in September 2021. Mr X does not agree he received this.
31. The Council said it sent Mrs X an email of its notice to amend Mr C’s EHCP in mid-April 2021.
32. The Council issued Mr C’s final amended EHCP on 18 May 2021. It sent this to Mr and Mrs X by email two days later. Mr C’s EHCP named a post-16 day college in the local area. The Council explained Mr and Mrs X had a right of appeal to the SEND tribunal.
33. Mr X said he did not receive a copy of Mr C’s EHCP and was unaware of its existence and content until he received a copy in August 2021. Mr X said this was only after he chased the Council for a response. Mr X disagrees with the named placement in Mr C’s EHCP.
34. Mr and Mrs X told the Council due to age and ill health they would not be able to look after Mr C indefinitely. They said they were considering moving to another part of the country to be nearer to family members.
35. Mr X asked the Council to consider a residential placement to help Mr C with the transition from moving away from his family home. He believed September 2021 would be the correct time to do this as Mr C was already transitioning between educational placements.

Mental Capacity Assessments and Best Interests

36. In May 2021, the Council completed a mental capacity assessment at Mr C’s school. This was to decide where Mr C lived. Present were Mr C, his teacher, a SEN transition advisor, and Mr C’s social worker. The notes show it assessed Mr C’s understanding of where he lived, his support network, friends, his personal care, and financial contributions. The document notes Mr and Mrs X’s views, the views of the college staff and that of Mr C’s social worker. It decided that Mr C could not fully show an understanding of the information and it decided he could not retain information and lacked the capacity to make a decision. The Council’s notes throughout this document show it believed Mr C needed the support of an IMCA to help him make a decision about his future. The document said “Whilst the options are still under consideration and Mr C does not yet have access to an IMCA, a decision cannot be taken.”
37. Following the mental capacity assessment with Mr C, the Council made a referral for an IMCA to support and help Mr C with his decision making.
38. An internal Council email dated late May 2021 shows the Council approved Mr and Mrs X as Mr C’s shared lives carers for a further twelve weeks. However, it recognised that in that time it needed to consider choices about Mr C moving into alternative accommodation. It said it had identified a local supported living placement, however, it also noted it needed to consider both residential colleges as well as supported living to find out what was in Mr C’s best interests.
39. Mr X emailed the Council in June 2021 saying he would not be enrolling Mr C into his new placement as the Council had not consulted him.
40. The Council kept contact with Mr X and said it had considered Mr X’s requests, however, its priority was its consideration of Mr C’s best interests.
41. Mr C’s IMCA held an introductory meeting in early July 2021. The Council said this was to find out and discuss the available choices for Mr C and arrive at a decision in his best interests.
42. In July 2021, the Council held an online meeting to discuss Mr C’s best interests about his placement and living arrangements. Mr and Mrs X attended with other professionals.
43. The Council maintained its position that moving Mr C to a residential placement, in a new area with no local connections was not the least restrictive choice under the MCA. It also said:

• It accepted Mr and Mrs X did not agree with this decision.

• There was no need for a residential placement while Mr C remained living with and in the care of Mr and Mrs X.
• Mr C answered questions dependent on his environment and told people what he believed they wanted to hear.
• Following discussions with Mr C’s SEN caseworker it had consulted with several local day colleges.
• Mr C would transition to a local day college in September 2021.
• Mr C’s IMCA should be mindful of the assessment and carry out further discussions with Mr C, Mr X, his school, and professionals.

44. Mr X said a college in the area he was proposing to move to had offered Mr C a place. However, the Council said it was concerned about the inadequate Ofsted rating.
45. The Council emailed Mr X and explained it had concerns about the IMCA’s conduct.
46. Mr X complained to the Council in August 2021. He said the Council had failed to:

• Meet statutory guidelines and issue Mr C with an EHCP by 31 March 2021.
• Failed to complete a mental capacity assessment to find out where Mr C would be educated. Mr X believed this made the EHCP invalid.
• Send the EHCP to Mr and Mrs X despite him asking to see it.
• Comply with the MCA as it had not engaged with Mr and Mrs X.
• Communicate directly with Mr C or seek his views.
• Take practical steps to introduce Mr C to his new educational placement.

47. The Council introduced Mr C to a new IMCA in early September 2021.
48. The Council emailed Mr and Mrs X in early September 2021. It clarified Mr C’s placement and recognised the start of a new placement was confusing for Mr C. However, it said it would look to make a best interest decision as soon as possible.
49. Mr C’s IMCA produced a report in late October 2021.
50. The Council responded to Mr X’s complaint in November 2021. It said:

• It was sorry for not meeting the statutory time limits when considering Mr C’s phased transfer.
• It had not conducted an assessment under the Mental Capacity Act to decide if Mr C could decide on his educational placement.
• It had asked for Mr C’s views informally, using Mr C’s teachers to ask him questions about his views on his educational placement.
• It had considered Mr and Mrs X’s views on Mr C’s attendance at a residential college; however, it did not believe this was in Mr C’s best interests.
• It partially upheld Mr X’s complaint about receipt of documents. It said it had sent the documents by email but did not seek confirmation of receipt.
• As Mr C remained living with Mr X it had decided to name a local day placement.

51. The Council circulated Mr C’s final IMCA report to his support network in early November 2021.
52. The Council completed a further online best interest meeting; however, it noted a consensus could not be reached about where Mr C should be educated.
53. Mr X remained dissatisfied with the Council’s response and asked for his concerns to be considered at stage two. He said:

• The mental capacity assessment offered Mr C no alternatives as he had only been shown one placement.
• The Council had not sought Mr C’s views before finalising his EHCP.
• The Council had failed to communicate properly with him and used an unmonitored email address.
• The Council had failed to take Mr and Mrs X’s views into consideration or seek their advice.
• The Council did nothing to alert Mr X that it sent Mrs X emails or check on receipt.
• The Council’s failure had led to Mr C’s right to appeal the EHCP being denied.
• The Council had failed to explain why Mr X’s choice of a residential college had been blocked in favour of three local colleges.

54. The Council was in regular contact with Mr X from November 2021 to February 2022.
55. An EHCP review meeting took place at Mr C’s school in early February 2022.
56. Mr X complained to the Ombudsman in June 2022. He said he had not received a response to his stage two complaint despite chasing the Council.
57. The Council appointed a new IMCA in July 2022.
58. The Council responded to Mr C’s complaint in August 2022. It said:

• It was sorry for the extraordinary delay in replying to Mr X’s complaint. It also apologised for leaving Mr X feeling uncertain about Mr C’s future.
• It accepted the mental capacity assessment carried out with Mr C about his educational placement was inadequate.
• It had looked to understand Mr X’s views and had drawn on other professionals’ commentary and experience from their work with Mr C.
• It remained of the view that Mr C’s mental capacity assessment was completed within the principles of the MCA.
• It upheld its view that it had asked Mr X for his views and had used the best possible information it had at the time.
• Mr X had the right of appeal to the SEND tribunal if he disagreed with the content of Mr C’s EHCP, however this had not been exercised.
• It had answered all of Mr X’s questions in its Stage One response and was not drawing any different conclusions.
• It said it recognised the work between the SEND department and Social Care was inadequate and it was undertaking work to address this concern. It was also re-training staff to better understand the needs of the MCA.

The Council’s response to my enquiries

59. The Council responded to my enquiries in November 2022. It said:

• The Council had completed a Mental Capacity Assessment with Mr C about where he lived.
• It accepted it had not carried out a mental capacity assessment with Mr C to ask where he would prefer to be educated.
• It believed it made the best decision about Mr C’s educational placement at the time with the information that it had gathered.
• It was sorry for the delay in finalising Mr C’s EHCP and upheld its stance in its earlier complaint response.
• It had taken Mr and Mrs X’s views and wishes into consideration but had come to a different decision.
• Mr and Mrs X had now appealed to the SEND tribunal about the content of Mr C’s EHCP.
• The changes in IMCA have delayed the Council’s decision making.
• The Council was still in the process of delivering a best interest decision for Mr C. It said it was holding meetings with Mr and Mrs X and professionals involved with Mr C to move the case forward.
• It was now looking into local residential educational arrangements.
• The questions to where Mr C will live and be educated are continuing.

Analysis

60. At the heart of this complaint are differing opinions of where Mr C should be educated. I am aware Mr X has now exercised his right of appeal to the SEND tribunal. By law, I have no jurisdiction to investigate Mr X’s concerns over the Council’s choice of educational placement. This will be decided by the SEND tribunal.

Failure to complete a Mental Capacity Assessment

61. The Council needed to discover whether Mr C had the mental capacity to make two decisions. These were where he lived and where he should be educated. The Council’s notes show it conducted a mental capacity assessment with Mr C about where he lived in May 2021. I have seen evidence the Council completed this assessment, having before it all relevant information. It decided Mr C did not have capacity to decide about where he lived. I have found no fault in how the Council conducted this.
62. However, the Council accepts it failed to properly complete a mental capacity assessment with Mr C about where he would like to be educated after September 2021. This was fault and caused uncertainty. The Council has apologised to Mr C and has taken steps to informally seek Mr C’s views about his educational placement with the help of his teachers. I also appreciate the Council instructed an IMCA to support Mr C and has held several best interest meetings that were attended by Mr and Mrs X. I am satisfied the Council’s apology is an adequate remedy for the injustice caused. The matter about where Mr C will be educated is ongoing and will be resolved through the SEND tribunal. The law says the SEND tribunal must take account of Mr C’s views in resolving the appeal.

Failure to meet Statutory Deadlines

63. The Council has also accepted and apologised to Mr X for failing to adhere to the statutory timeframes when finalising Mr C’s EHCP. The guidance is clear, Mr C’s review process should have been completed by 31 March 2021. The Council failed to do this with a delay of just over six weeks and this was fault. This caused Mr X frustration and delayed his right of appeal to the SEND tribunal. I have made recommendations to address the injustice caused.

Delay in complaint handling.

64. The Council failed to meet its complaint response targets in both its stage one and two responses. The Council took nearly ten months to respond to Mr X’s stage two escalation. I have seen no evidence the Council kept Mr X informed of the reason for this significant delay. This was fault and added to Mr X’s level of dissatisfaction with the Council, created uncertainty and put him to the time and trouble of complaining. The Council has apologised to Mr X and recognised there was extraordinary delay. I have made further recommendations to remedy the injustice this caused.

Back to top

Agreed action

65. By 10 April 2023 the Council will:

• Pay Mr X £100 for frustrating his right of appeal to the SEND tribunal.
• Pay Mr X £100 for the delay in responding to his complaint causing him uncertainty and putting him to the time and trouble of complaining to the Ombudsman.
• Share this decision with complaint handling staff, reminding them to issue a response to complaints within the Council’s published timescales.

66. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

67. I have completed my investigation by finding the Council was at fault for failing to adhere to statutory guidelines. I also find fault with the Council for failure to adequately complete Mr C’s mental capacity assessment about where he should be educated and for failure to adhere to the time limits in its complaint policy. The Council has agreed to remedy the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman