Summary: The Council delayed making a decision about Mr Y’s social care provision and issuing the decision to cease to maintain his Education, Health and Care Plan. This caused avoidable uncertainty, distress and a delay in appeal rights which have not been used. The Council has already apologised and this is an appropriate remedy.

The complaint

1. Mr X complained for his son Mr Y. He said the Council:
1. Decided not to fund Mr Y’s residential college placement for a third year and instead funded adult social care day provision
2. Did not ensure an officer from the SEND team took part in the transition/annual review meeting in November 2023
3. Misrepresented its discussions with College A about its S Programme.
4. Delayed making decisions about Mr X’s social care provision
2. Mr X said this caused avoidable distress and mistrust in the Council. And, Mr Y has been denied a third year in residential college and participation in a scheme at College A, which he enjoyed.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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)

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What I have and have not investigated

6. I have investigation complaints (b) (c) and (d). I investigated part of complaint (a) but not the decision not to extend the college placement. I explain why in paragraphs seven to ten.
7. The Council’s decision not to extend Mr Y’s residential college placement resulted in the Council issuing a decision to cease to maintain Mr Y’s EHC Plan. This had a right of appeal to the SEND Tribunal. Mr X told me:
• At no stage was it mentioned that cessation of the educational part of Mr Y's EHC Plan would impact funding for a third year at College A.
• At the annual review meeting in November 2023, staff from College A said Mr Y was struggling in class with the academic aspect of his course. He (Mr X) accepted Mr Y had plateaued in his lessons and appreciated college staff being honest. Because of this, it was agreed a more vocational third year would still be open to Mr Y, focusing on life skills through the programme. The social worker offered no comment that this could create issues for funding or outcomes.
8. Mr X’s parental comments provided before the annual review meeting were, they wanted an outdoor/farm setting for Mr Y. They said they were interested in the S Programme for further education and training and continuing at College A to help him prepare for supported living.
9. The social worker from the Adult Social Care Preparing for Adulthood (PFA) team said during the annual review that a third year on his study programme would likely not be feasible for Mr Y, however she would like more information about the S Programme.
10. I have decided it was reasonable for Mr X to have appealed the decision to cease Mr X’s EHC Plan. There was no commitment from the Council’s PFA team during the annual review meeting or at any other time to fund a further residential year at College A, either on the S Programme or any other educational programme. What College A may or may not have said is not relevant because it is not the body which funds the placement: the Council does. What is clear from the records available is that Mr X knew nothing had been formally agreed or promised by the Council in terms of funding for Mr Y’s education from September 2024. And when he received the decision to cease letter with appeal rights, in the absence of any funding decision from adult social care, it was reasonable for him to secure Mr Y’s continuing education via an appeal.

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How I considered this complaint

11. I considered the complaint to us, the Council’s response to the complaint and evidence set out in this statement. I discussed the complaint with Mr X.
12. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

13. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, section 9)
14. Where a council agrees a person has care and support needs which meet national eligibility criteria, it must issue them with a care and support plan which sets out their needs, explains which is an eligible need and says how much funding the person is entitled to. It should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
15. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
16. The courts have confirmed a person’s wishes are not the same as their needs and wishes are not the paramount consideration. A council must have ‘due regard’ to an adult’s wishes as a starting point, but social workers are entitled to exercise their professional skills and judgement in deciding how to meet eligible needs. (R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin))
17. Statutory Guidance says a council may take into account its budget and finances, including ensuring the funding available to it is enough to meet the needs of the whole local population. It may balance the requirement to meet an individual’s eligible needs with its overall budgetary responsibilities. It can take case by case decisions which weigh up the total costs of different potential options for meeting needs and include the cost as a relevant factor in deciding between suitable options for meeting needs. (Care and Support Statutory Guidance, 10.27)
18. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.

19. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or cease to maintain the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
20. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the SEND Tribunal.
21. A council must not cease to maintain an EHC Plan just because a young person turns 19; but there is not an automatic entitlement to continued provision on an EHC Plan either. A council can cease to maintain a plan if it decides it is no longer necessary for a plan to be maintained. This includes where the young person no longer requires the SEP specified in their Plan. The council must have regard to the training and educational outcomes in the Plan have been achieved. (SEND Code of Practice, paragraph 9.151)
22. Young people who do not need to remain in formal education or training will not require special educational provision through an EHC Plan. (SEND Code of Practice paragraph 9.152)

Background

23. Mr Y had an EHC Plan. It named a residential college (College A) as Mr Y’s educational placement. Mr Y attended College A from September 2022 to July 2024.

What happened

24. An annual review of Mr Y’s EHC Plan took place in November 2023. Present was a social worker from the Adult Social Care (ASC) Preparing for Adulthood (PFA) team, Mr X and Mr Y and staff from College A.
25. Internal records indicate the Council’s SEN panel decided to cease to maintain Mr Y’s EHC Plan at a meeting on 6 December 2023. But it did not communicate its decision in writing until March 2024 (see later in this statement).
26. Internal emails between the social worker and SEND case officer indicate the latter queried whether or not attendees at the annual review meeting were proposing for Mr Y’s EHC Plan be maintained for a further year. The social worker replied saying S Programme was work experience and independent living skills and was social care funded, living in accommodation at the college. The SEND case officer said the SEND team usually only funded internships at College A for a third year and it was likely that the SEND Team would cease to maintain Mr Y’s EHC Plan from the end of the school year (August 2024). The social worker said they would need to get any funding decision approved by the ASC funding panel.
27. In January Mr X emailed the Council saying they had been told at the annual review meeting that Mr Y did not meet the criteria for a supported internship at College A and they agreed (because it was designed for students who had a realistic prospect of employment and Mr Y did not have the academic potential for this) So they were keen for Mr Y to go on the S programme (a residential programme at College A) which was more vocational. Mr Y asked what would happen to the health and social care elements of Y’s EHC Plan if it ceased. The social worker said they would find out about this and about costs of Springboard. The SEND case officer emailed Mr X saying a council can cease to maintain a plan if it decides it is no longer necessary to maintain one. And they would get a letter outlining the process and explaining appeal rights.
28. The social worker emailed College A asking about costs for the Springboard Programme.
29. The Council received a breakdown of costs from College A for the S programme at the start of March 2024.
30. At the end of March, the Council wrote to Mr Y saying it would cease to maintain his EHC Plan from August 2024.
31. The Council completed an adult social care assessment for Mr Y in May 2024. Mr Y was eligible, including in the domain ‘accessing and engaging in work, education, training or volunteering’. The assessment said the social worker would look at the social care pathway for when college finishes in July 2024 or alternative social care support. The assessment noted the family’s preference for S Programme.
32. Also in May 2024, the social worker emailed Mr X saying they had spoken to staff at College A and Mr Y would need additional support to take part in the S Programme. The social worker said they would be speaking to College A again about why it had offered the programme, without thinking about what the provision might look like for Mr Y. The email went on to say there was other social care provision including day services and community sports provision and respite care.
33. Mr Y’s care and support plan of September 2024 set out the agreed funding and care and support services to meet his eligible needs:
• £10,600 a year for overnight respite stays at College A
• £290 a week for two days a week at a farm setting
• £100 a week for two days a week at a horticultural setting
34. Mr X complained to the Council raising similar issues as he has in the complaint to the LGSCO. The Council partially upheld the complaint. It accepted there were delays in the process and these caused avoidable distress and apologised. The Council said it was offering a more personalised programme of support for Mr Y and the suggestion from College A that Mr Y would need extra support called into question its suitability for Mr Y
35. The Council told me:
• Mr Y had reached his academic potential at College A. It was more appropriate to support him on a social care pathway, like day services
• It accepted it had delayed making a decision about the S Programme and it apologised for this in the complaint response. It had also apologised to the family for any misleading information
• Although the SEN case officer didn’t attend the annual review meeting in November 2023, social care did and there was liaison between the teams.
• Everyone agreed Mr Y’s EHC Plan would cease at the end of August 2024. An ASC officer was the most appropriate officer to attend the annual review meeting
• The S Programme is a course designed to give young people extra support to develop their independence when they have reached their academic potential. It is funded by ASC
• Mr Y would require support over and above what was ordinarily be provided for the S Programme.
• The decision not to approve funding for S Programme was made because:
1. Other social care provision was available (including day opportunities and respite)
2. Cost
3. Suitability of the course and the outcomes Mr Y would be expected to achieve.

Findings

The Council decided to fund adult social care day provision

36. The Council’s legal duty with regard to provision of adult social care services is to meet eligible unmet needs (Section 18 of the Care Act 2014). It is entitled to take into account the costs of different proposed care and support packages as one factor in the decision-making process. The evidence indicates the Council took into account not just the cost, but also the suitability of Programme S and noted Mr X and Mr Y’s preferences. However, the Council took the view Programme S was not suitable because Mr Y would not cope with it unless he had additional support. This is a view the Council is entitled to take. The Council considered all relevant matters including the family’s views and in the absence of fault, there are no grounds for me to criticise the decision the Council made.

The Council did not ensure an officer from the SEND team took part in the transition/annual review meeting in November 2023

37. There is no legal requirement for an officer from the SEND team to attend annual review meetings and councils may delegate the annual review meeting to the educational placement to hold. So there is no fault.

The Council misrepresented its discussions with college about the S Programme

38. The case notes do not show any misrepresentation. College A was willing to offer Mr Y a place on the S Programme and provided costs to the Council with the additional support it said Mr Y needed. There is no fault by the Council.

The Council delayed making decisions about Mr X’s social care provision

39. The Council accepted there was a delay in its decision and apologised. The delay was fault causing avoidable distress (anxiety for Mr Y and his family) about Mr Y’s future. The Council’s apology is an appropriate remedy.
40. There was a delay in issuing the decision to cease to maintain Mr Y’s EHC Plan. This decision should have been made within four weeks of the annual review meeting by December 2023. The records indicate the letter was not issued until the end of March 2024. The delay was not in line with the SEND Code of Practice and was fault. The injustice is limited though as Mr X did not issue an appeal.

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Final decision

41. There was fault by the Council, but the apology it has already issued is an appropriate remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman