Summary: The Ombudsman found fault by the Council in its handling of the Education, Health and Care plan process for a young man with special educational needs, and with the social care support it provided to him. This resulted in unnecessary delays and caused the complainant, who is the young man’s mother, avoidable distress and inconvenience. The Council agreed to apologise to the complainant and pay a financial remedy in recognition of the impact this fault had on her and her son. The Council will also take action to prevent similar problems occurring in future.

The complaint

1. The complainant, who I will call Miss X, is complaining about the care and support provided to her son, Mr Y, by the Council. Miss X complains the Council failed to:

• Carry out an annual review of Mr Y’s Education, Health and Care (EHC) plan in accordance with the law. Miss X says the Council failed to obtain and distribute relevant reports. She also says the Council failed to listen to her views and those of Mr Y’s college. Miss X says the new draft EHC plan still does not include relevant information.
• Provide notification of its decision to end the EHC plan, meaning she could not appeal to the tribunal.
• Provide continuity of care due either to the lack of a social worker, or frequent changes of social worker.
• Complete an assessment of her son’s social care needs. Miss X says a social worker also interfered with Mr Y’s placements even though she had not given her consent for this. Miss X says the social worker did not listen to her views or those of Mr Y.
• Carry out a carer’s assessment for two years despite her requesting one.
• Arrange transport for her son between his respite placement and his college.
• Respond to complaints appropriately and in keeping with its complaint policy.

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The Ombudsman’s role and powers

2. 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)
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

4. In making my final decision, I considered information provided by Miss X and discussed the complaint with her. I also considered records and documentation provided by the Council.
5. I invited comments from Miss X and the Council on my draft decisions and considered the information they provided before making my final decision.

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What I found

Relevant legislation and guidance

Education, Health and Care Plan

6. The Children and Families Act 2014 (the Act) introduced changes to the way in which local authorities support children and young people with special educational needs.
7. The Act provides that a child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child or young person’s needs and what arrangements should be made to meet them. A young person can remain on an EHC plan until they turn 25, if continuing in education.
8. Local authorities are responsible for making sure that arrangements specified in the EHC plan are put in place.
9. The Department for Education produces statutory guidance for local authorities working with children and young people with special educational needs or disabilities entitled Special educational needs and disability code of practice: 0-25 years (the SEN Code).
10. The SEN Code sets out the duties and responsibilities of local authorities and educational placements to young people with special educational needs.
11. Regarding EHC plan reviews, the SEN Code says:

• The local authority must review an EHC plan at least every 12 months. The first review must take place within 12 months of the date the EHC plan was first issued.
• The local authority must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan.
• Within four weeks of the of the review meeting, the local authority must decide whether it proposes to keep the plan as it is, amend the plan, or cease to maintain the plan, and notify the young person or their parent.
• If the local authority decides not to amend the plan, or decides to cease it, they must notify the young person or their parent of the right to appeal.

Mental Capacity Assessment

12. The Mental Capacity Act 2005 is the legislation that deals with people who may lack the mental capacity to make particular decisions for themselves.
13. The government also produces guidance for professionals called the Mental Capacity Act Code of Practice 2007 (the MCA Code). This describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
14. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity.
15. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision. An assessment of someone’s capacity is specific to the decision to be made at a particular time.

Court of Protection

16. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
17. If there is a need for continuing decision-making powers, the Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf.

Care Act 2014

18. The Care Act 2014 is the legislation that sets out local authorities’ duties to assess the needs of adults with an appearance of need for care and support. If a local authority determines that an adult has eligible needs, it must provide care and support to meet those needs.
19. The Care Act 2014 is accompanied by the Care and support statutory guidance (the statutory guidance). This provides local authorities with further guidance on their powers and duties under that legislation.

Key facts

20. Mr Y is a young man with special educational needs.
21. In September 2016, Mr Y began a college placement for two days a week. The Council put in place an EHC plan setting out his support needs.
22. Mr Y received support from the Council’s Children and Young People with Disabilities Service. He also received Direct Payments to allow him to access structured daytime placements three days a week, as well as respite care.
23. The Council was due to undertake an annual review of Mr Y’s EHC plan in August 2017. However, this was delayed and did not take place until February 2018.
24. At the review meeting, it was recorded that there was no suitable educational progression available to Mr Y and that his EHC plan would cease at the end of the academic year.
25. In May 2018, the Council held a further EHC plan review meeting to discuss a possible college course for Mr Y. It was agreed the course would be suitable for Mr Y and the decision was made to continue the EHC plan for the duration of the course.
26. Mr Y began attending the new course in September 2018.

Analysis

Delayed review meeting

27. Miss X complains the Council did not carry out an annual review of Mr Y’s EHC plan in accordance with its statutory duties. Miss X says the review was delayed by six months.
28. The Council acknowledged the review had not been carried out within one year of the EHC plan being issued (in August 2016). The Council said it generally asks the educational setting (in this case, Mr Y’s college) to convene annual review meetings. The Council said it is working with colleges to embed the review process.
29. Section 7.20 of the SEN Code sets out that “[w]here a student has an EHC plan, the local authority must review that plan as a minimum every twelve months, including a review of the student’s support.”
30. While the SEN Code clarifies that a local authority can ask a college to convene a review meeting on its behalf, the local authority retains the statutory duty to ensure a review takes place. In this case, the review did not take place until February 2018, six months later. This was fault by the Council and caused Miss X understandable frustration.

Failure to provide reports

31. Miss X complains that the Council failed to obtain, and distribute, relevant reports prior to the meeting. Specifically, Miss X said the Council failed to arrange input from a Speech and Language Therapist (SALT). Furthermore, Miss X said the Council failed to arrange a Continuing Healthcare (CHC) assessment for Mr Y.
32. The Council said Mr Y had no documented SALT needs and so it did not request information from this service. However, the Council said it would include relevant SALT information in Mr Y’s draft EHC plan.
33. Miss X says Mr Y’s SALT needs had been assessed in October 2015, prior to his transfer to an EHC plan. Miss X says that, by the time of the EHC plan review meeting in February 2018, Mr Y had shown significant improvement in his communication. Miss X said she felt the 2015 assessment was out of date and a new review was required. Miss X says she first raised this with the Council in August 2016 when Mr Y transferred to an EHC plan. She says she also raised this again with Mr Y’s college prior to the meeting.
34. It is clear from the records that Mr Y has complex communication needs. Despite this, Mr Y’s SALT needs had not been assessed for over two years by the time of the review meeting. This was fault by the Council and meant an opportunity was missed to explore whether Mr Y required SALT support.
35. Miss X also said the Council failed to obtain input from a music therapy service Mr Y had been using since November 2017. Miss X said she obtained a copy of a report from this service prior to the meeting and shared this with the college. However, she said the college representative did not present the report at the meeting.
36. It is unclear why the college did not seek input from the music therapy service prior to this meeting, given Mr Y had been using this service for several months by that point. Nevertheless, the notes of the meeting show Miss X was given an opportunity to present her views about the benefits of this service for Mr Y. I found no fault by the Council on this point.
37. I understand Miss X feels music therapy would be of ongoing benefit to Mr Y and that it should have been incorporated into his draft EHC plan. I have commented on this issue further below as part of my consideration the draft EHC plan.
38. The notes of the review meeting in February 2018 show the Council agreed to arrange a CHC assessment for Mr Y. Despite this, at the time of writing this decision statement, the assessment had still not been arranged. The Council accepts this was an oversight. This was fault.
39. It is not possible to say whether Mr Y would have been eligible for CHC funding even if an assessment had been undertaken when Miss X first requested this. However, the Council’s failure to arrange an assessment contributed to Miss Y’s ongoing frustration. I have addressed this in the ‘agreed actions’ section of this decision statement.

Failure to consider views

40. Miss X complains that the Council failed to take into account her views and those of Mr Y’s college in respect of potential further education opportunities for Mr Y. Miss X says that, by the time of the meeting, the college was developing an educational programme it thought would be suitable for Mr Y. However, Miss X says the Council told her at the review meeting it would not be prepared to fund any further education for Mr Y. I understand Miss X feels the Council had already decided to cease Mr Y’s EHC plan provision.
41. The Council accepted there had been some discussion between the college and Miss X prior to the meeting. The Council said it had not been aware of this at the time. The Council accepted the course had not been discussed in detail at the meeting. It said this was because the college had not yet secured funding for it. The Council also accepted officers had told the meeting Mr Y’s EHC plan would be ceased at the end of the academic year, but only if he transferred to an adult social care package.
42. The notes of the meeting record that “[A Council manager] also acknowledged the progress [Mr Y] had made, and confirmed that the college were not offering a progression option for [Mr Y] for the academic year 2018/19 and responded to questioning from [Miss X] regarding [Mr Y] remaining within Special provision by advising that Higher Needs Funding cannot fund a repeat of a course that had already been studied and completed by a student.” However, the notes also emphasise that no formal decision had been made and that the college and Council would continue to explore possible options.
43. I recognise Miss X was keen for Mr Y to continue in education and that the college had identified potential options prior to the meeting. Miss X’s views are reflected in the record of the annual review and her subsequent comments that the Council appended to the notes.
44. However, I also note the Council’s view that funding had not yet been secured for the course in question at the time of the meeting. In the circumstances, I accept the Council’s view that it would not have been appropriate to discuss this as a definite option at that stage. I found no fault by the Council in this matter.

Notification of intention to end EHC plan

45. Miss X complains that the Council failed to formally notify her that Mr Y’s EHC plan would cease. She says this meant she was unable to appeal the decision.
46. The Council said it that Mr Y’s educational programme was due to end in July 2018. The Council said it followed that his EHC plan would cease at the end of this course as no alternative course had been identified at that stage. The Council said it was made clear that, should a suitable educational provider be identified, then the basis of the decision to cease the EHC plan would change.
47. The evidence suggests discussions had taken place prior to the meeting with regards to Mr Y attending a further course at the college. As I have explained above, the course appears to have been in development at that stage and was not yet considered to be a firm option for Mr Y.
48. The SEN Code says the local authority must provide a copy of the report of the review meeting within two weeks of the meeting taking place. The SEN Code also says the local authority must, within four weeks of the meeting, decide whether it proposes to keep the plan as it is, amend the plan, or cease to maintain the plan, and notify the young person or their parent.
49. Based on the evidence I have seen, the Council failed to abide by either of these timescales. This is fault and caused Miss X understandable frustration.
50. Following further correspondence with Miss X and the college, the Council agreed to arrange another EHC plan review meeting. At this meeting, in May 2018, it was agreed the proposed college course would be suitable for Mr Y and that it would be in his best interests to attend it. As a result, the Council decided not to cease the EHC plan.
51. I appreciate the Council’s failure to meet the timescales set out in the SEN Code caused Miss X understandable frustration. However, I do not consider this resulted in a significant injustice for Mr Y. This is because the Council ultimately did not cease the EHC plan and Mr Y remained in education.
52. Miss X is also concerned about the level of specialist support provided to Mr Y during this period. Again, I have commented further on this below in my consideration of the draft EHC plan process.

Draft EHC plan

53. Miss X complains that the Council failed to include relevant reports and information in Mr Y’s draft EHC plan following the review meetings in February and May 2018. Miss X says she requested a sensory assessment and SALT assessment for Mr Y in February 2018, but these have still not been completed and so could not be included in the draft EHC plan. In addition, Miss X says the Council has not obtained input from a specialist teacher for the deaf. Furthermore, Miss X says the include music therapy within the draft EHC plan.
54. As I have explained above, the records show the SALT referral was discussed at the review meeting in February 2018. The notes of the meeting show it had been agreed that the college would arrange this assessment. Nevertheless, the Council retains overall responsibility for gathering information to inform the EHC plan review process.
55. I found no evidence to suggest the Council took action when the SALT assessment had not been carried out by the second review meeting in May 2018. The college eventually requested this in June 2018. At the time of writing this decision statement, the assessment has still not been completed. Again, I found no evidence to suggest the Council took action to expedite the assessment. This was fault by the Council.
56. As the SALT assessment process is not yet complete, I am unable to say whether Mr Y will require ongoing SALT support. Nevertheless, there has been significant delay in obtaining SALT input and this represents a missed opportunity to explore Mr Y’s SALT needs sooner.
57. Similarly, Miss X requested a sensory assessment in February 2018. The case records show Miss X raised this again with Officer E in June 2018. An interim sensory assessment was eventually completed in May 2019. This recommended a full sensory processing assessment and I understand this is ongoing.
58. The Council is responsible for ensuring relevant specialist input is gathered to inform Mr Y’s EHC plan. Despite this, the sensory assessment has now been outstanding for over a year. Again, I found no evidence to suggest the Council took action to expedite the assessment. This represented fault by the Council.
59. Again, it is not possible at this stage to say what sensory support Mr Y will receive as a result of the sensory assessment. However, I note the interim sensory report comments that Mr Y “experiences significant sensory processing difficulties which impact on his day to day functioning”. This includes “tactile defensiveness” which means Mr Y is unwilling to let anybody touch his feet. The report recommends a full sensory processing assessment to explore strategies to help Mr Y to tolerate touch to his feet.
60. In her comments on my previous draft decision statement, Miss X explained that Mr Y is due to undergo surgery under general anaesthetic to cut the toenails on one of his feet. She queried whether this would have been necessary if action had been taken to explore Mr Y’s sensory processing problems sooner.
61. It is not possible to say whether Mr Y’s surgery could have been avoided, even if he had received earlier sensory input. Nevertheless, the interim sensory report strongly suggests Mr Y will need additional support in this area. In my view, the Council missed an opportunity to explore Mr Y’s sensory needs at a much earlier stage.
62. In her correspondence with the Council, Miss X said she first suggested input from a specialist teacher for the deaf to the college in June 2017. There is no evidence to suggest a referral was made until Miss X requested this following the review meeting in May 2018. I understand a specialist teacher for the deaf eventually visited Mr Y’s college in Autumn 2018.
63. In response to my enquiries, the Council explained that the specialist teacher for the deaf visited the college to discuss possible support with college staff. The Council said the specialist teacher for the deaf did not produce a report as this was not an in-depth visit. However, the Council said he did provide verbal advice on provision to be included in the EHC plan to support Mr Y with his hearing impairment.
64. I have reviewed the revised EHC plan and this clearly records the PA’s hearing impairment and notes that he wears hearing aids. The EHC plan also includes provision to support the PA with his hearing impairment, including training for college staff and monitoring of his hearing aids. For this reason, I am satisfied Mr Y’s needs in this area are now reflected in the revised plan.
65. Nevertheless, there was delay by the Council in obtaining this specialist input. This was fault. This caused further frustration for Miss X.
66. Miss X also complained that the Council failed to include music therapy in Mr Y’s draft EHC plan.
67. In response to my enquiries, the Council explained that music therapy was initially provided as part of Mr Y’s place in the Special Provision at his college. The Council said this therapy was available to any student for whom the college felt it would be beneficial. However, the Council said Mr Y subsequently moved to a study programme that was outside the Special Provision. As a result, the Council said music therapy was not included within the college’s offer for the new course. The Council said it has not received any evidence to suggest music therapy is recommended as an ongoing therapeutic intervention for Mr Y.
68. I appreciate Miss X’s views about the benefits of this service for Mr Y. However, it is not for the Ombudsman to decide what support should be included within the draft EHC plan. This is ultimately a matter of professional judgement for the Council officers involved, taking into account Miss Y’s views and any recommendations from the music therapy service.
69. The evidence shows the Council did consider both Miss X’s views and those of the music therapy service within the draft EHC plan process. I found no fault by the Council on this point.

Lack of continuity of care

70. Miss X complains there was a lack of continuity of care in Mr Y’s case due to frequent changes of social worker. She says there were also long periods between 2016 and 2017 where Mr Y was without a social worker.
71. The case records show Mr Y’s allocated social worker (Officer A) left the Council without notice in August 2016. Later that month, a team manager contacted Miss X to ask whether she had any urgent concerns. Miss X said she was awaiting a carer’s assessment but had no urgent concerns at that stage.
72. The Council allocated Mr Y’s case to an agency social worker (Officer B) in December 2016. Officer B left the Council in July 2017.
73. The case records show there was brief contact between Miss X and another social worker (Officer C) in August 2017 before the case was reallocated again in October 2017 (to Officer D).
74. However, Miss X requested a change of social worker in January 2018 as she was unhappy with Officer D’s handling of Mr Y’s case. As the family had by this time moved to another part of the county, the case was reallocated to Officer E, in February 2018.
75. In response to my enquiries, the Council acknowledged there had been delays in reallocating the case. The Council said this was due to significant staffing difficulties within the team. The Council said it reallocates cases as quickly as possible when a member of staff is leaving, but that this is dependent on replacement staff being available.
76. The evidence shows there were two periods (between August and December 2016 and between July and October 2017) during which Mr Y had no allocated social worker.
77. I acknowledge the Council’s position in respect of staff shortages and pressure on its resources. I also accept the Council is unable to plan effectively for staff leaving with little or no notice.
78. Nevertheless, the Council had a statutory duty to provide support to meet Mr Y’s needs as set out in his EHC plan. This included support from the Council’s Children and Young People with Disabilities Service. The evidence shows there were two significant periods in 2016 and 2017 during which Mr Y did not have an allocated social worker from the team to provide this support. This was fault by the Council and caused Miss X unnecessary frustration and inconvenience.
79. However, the evidence suggests these periods of delay did not have a significant impact on Mr Y. This is because, although Mr Y did not have an allocated social worker during these periods, he was in receipt of social care support. This included regular settled day activity and respite care placements. I found no evidence to suggest Mr Y’s assessed needs were unmet during this period.

Social worker involvement - Officer D

80. Miss X complains that Officer D interfered with Mr Y’s Direct Payments arrangements and placements even though she had not given her consent for this. Miss X says Officer D failed to complete an assessment of My Y’s social care needs.
81. Officer D became Mr Y’s allocated social worker in October 2017. However, Officer D did not contact Miss X until the following month, by which point the family was in the process of moving to a different part of the county.
82. The case records show Officer D wanted to explore day activity placements that would be closer to Mr Y’s new home. However, both Miss X and Mr Y felt he was settled in his current placements and were reluctant to change these arrangements.
83. This disagreement culminated in a difficult meeting at one of Mr Y’s placements in December 2017, during which Miss X says Officer D behaved in a manner that was “critical and judgemental”. This led Miss X to request a different social worker be allocated to Mr Y.
84. In my view, Officer D had a responsibility to consider whether the Council was using its resources wisely to support Mr Y. In this context, Officer D acted appropriately in considering whether there was care provision closer to Mr Y’s home that could meet his needs.
85. I have reviewed Officer D’s notes of the meeting and her correspondence with Miss X. These documents clearly record Miss X’s views about the placements and her understandable wish to avoid unnecessary disruption for Mr Y.
86. On this basis, the evidence suggests Officer D took Miss X’s views into account in considering whether an alternative placement would be more suitable. I found no fault by the Council in this regard.
87. The case records show the relationship between Miss X and Officer D worsened in January 2018 due to confusion over one of Mr Y’s day activity placements.
88. At this time, Officer D was auditing Mr Y’s Direct Payments as part of the yearly review process. She identified an underspend on the account of over £16,000. As part of her investigation, Officer D contacted one of Mr Y’s placements to check he was still attending.
89. It is unclear why Officer D assumed Mr Y was not attending the placement. The records show Miss X had advised her on a number of occasions that he was. In addition, Mr Y’s Direct Payments account statement showed he had been attending.
90. Nevertheless, Officer D acknowledged her error and wrote to Miss X to apologise for this. In my view, this was a reasonable and proportionate response. I appreciate Miss X was unhappy with Officer D’s actions and felt this was a deliberate attempt to cause problems. However, I have seen no evidence to suggest this was the case.
91. In her apology email to Miss X, Officer D explained that the underspend had developed as Mr Y’s respite placement was invoicing the Council directly, rather than via his Direct Payments account. Miss X contacted the respite placement to ask it to invoice Mr Y’s Direct Payments account in future. Miss X emailed Officer D later that month to confirm this.
92. Despite this, the case records show Officer D arranged for the surplus on the account to be recovered. She also arranged for a reduction in Mr Y’s weekly Direct Payments. This resulted in an overspend on the account as the respite placement had by then started invoicing the Direct Payments account directly (as requested by Miss X and confirmed to Officer D) and there were insufficient funds in the account.
93. In my view, this is evidence of confusion on the part of the Council around Mr Y’s Direct Payments and how these should be managed. This was fault and resulted in unnecessary anxiety and frustration for Miss X.
94. Miss X also complains that Officer D failed to complete a social care assessment for Mr Y prior to the EHC plan review meeting in February 2018. Miss X also complains that Officer D continued to be involved in Mr Y’s case, even after she requested a different social worker be allocated.
95. The case records show Miss X requested a different social worker on a number of occasions in December 2017 and January 2018. She also requested that Officer C, who had accompanied Officer D to the meeting in December 2017, have no further involvement in Mr Y’s case. This placed considerable pressure on the Council’s limited resources.
96. I note Miss X’s views about Officer D’s actions and her presence at the review meeting in February 2018. However, I accept the Council’s view that Officer D needed to remain involved in the case for a limited time to manage Mr Y’s transition to a new social worker. I found no fault in this regard.
97. The records show Officer D contacted Miss X in December 2017 to arrange a social care assessment. The evidence suggests this did not go ahead due to the deterioration in Miss X’s relationship with Officer D. While there does appear to have been a delay in carrying out a social care assessment, therefore, I am not persuaded this was result of inaction by Officer D. I found no fault here.

Social worker involvement – Officer E

98. Miss X says there was then further delay by Officer E in completing Mr Y’s social care assessment. Miss X said this in turn further delayed the draft EHC plan.
99. The records show Officer E became Mr Y’s social worker in March 2018, though she had also been present at his EHC plan review meeting the previous month. However, she did not complete Mr Y’s social care assessment until August 2018, six months after the initial review meeting.
100. In response to my enquiries, the Council said this delay was due to Miss X challenging Mr Y’s respite package and requesting amendments to the Officer E’s assessment report.
101. I accept, to a point, the Council’s view that these factors contributed to the overall delay. However, the records suggest Officer E did not begin the assessment until June 2018, by which point four months had already passed since the review meeting. The Council has provided no explanation for this delay.
102. In my view, this is fault by the Council, particularly given the professionals involved in Mr Y’s care had been aware since late 2017 that a social care assessment was outstanding. This contributed to further delays in the EHC plan process as a whole.

Carer’s assessment

103. Miss X complains that she first requested a carer’s assessment in 2015, before Officer A left the Council. However, she said it was not until March 2018 that this was done. In addition, Miss X says the support plan arising from the carer’s assessment did not initially include additional support for Mr Y during the college holidays, leading to a delay in the support being provided.
104. The Council explained that Officer B had attempted to contact Miss X between December 2016 and July 2017 to arrange a carer’s assessment, but was unable to do so. The Council said it had been intended that Officer D would undertake the assessment once the case had been allocated to her. However, the Council said Miss X’s relationship with Officer D had deteriorated to such an extent that this was not possible. The Council said Officer E eventually carried out the assessment in March 2018.
105. The Council acknowledged that Officer E inadvertently omitted the request for additional support from her initial application to the funding panel. However, it said the social worker identified this, apologised and secured out-of-panel approval for the additional support.
106. It is not clear from the records I have seen exactly when Miss X first requested a carer’s assessment. However, Miss X says she requested a carer’s assessment in 2015 when Mr Y’s case was allocated to Officer A. Officer A did not complete a carer’s assessment before leaving the Council in July 2016.
107. In August 2016, when a Council manager contacted Miss X pending reallocation of Mr Y’s case, he acknowledged the assessment remained outstanding.
108. The case notes show Officer B contacted Miss X three times between December 2016 and April 2017 to arrange a carer’s assessment. Miss X acknowledged this contact. However, as she was at that time arranging the family’s house move, the assessment did not go ahead before Officer B also left the service in July 2017.
109. There then appears to have been a further delay until October 2017 before the case could be reallocated to Officer D. However, due to the deterioration in Miss X’s relationship with Officer D, it became necessary to reallocate the case again. Officer E visited Miss X in March 2018 to carry out the assessment.
110. The evidence shows there was a period of around two years during which no carer’s assessment was undertaken. In my view, the Council was not responsible for this delay in its entirety. The case records show Officer B did make some effort to arrange an assessment between December 2016 and July 2017 but Miss X was unable to engage with the process at that time. I also note there was further delay between October 2017 and February 2018 due to Miss X’s deteriorating relationship with Officer D.
111. Nevertheless, there was a significant delay by the Council between 2015 and December 2016 in terms of carrying out a carer’s assessment for Miss X. The Council has provided no explanation for this.
112. There was a further period of delay between July 2017 and October 2017. As I have explained above, I accept the Council was struggling with low staffing levels. However, it had a statutory duty to assess Miss X’s needs as a carer. This did not happen until March 2018. This was an unreasonable delay and is evidence of fault by the Council.
113. In my view, this represented a missed opportunity to consider Miss X’s needs at an earlier stage. This was potentially significant given Miss X has additional caring responsibilities for her daughter, who also has a disability.
114. I have reviewed the support plans arising from both the carer’s assessment and Mr Y’s social care assessment that the Council completed in July 2018. These assessments recognised the complexity of Mr Y’s needs and the impact of these on Miss X as a carer. The Council funded additional time for Mr Y at his day activity placements during non-term time, as well as increasing his care hours to allow Miss X to support her daughter.
115. It is not possible to say what additional support would have been put in place for Mr Y and Miss X if the Council had undertaken a carer’s assessment at an earlier stage. This is because their needs would not necessarily have remained the same throughout this period. Nevertheless, the delay in carrying out an assessment meant an opportunity was missed to provide additional support for Mr Y and Miss X.
116. I note Miss X’s frustration that Officer E did not initially include the additional support she requested for Mr Y during the college holidays in her submission to the Council’s funding panel. However, I accept the Council’s view that Officer E, in consultation with Miss X, was able to identify this promptly and resolve the matter out of panel. While Officer E did make an error, my view is that this was not so serious as to be considered fault.

Transport

117. Miss X complains that the Council failed to arrange transport for Mr Y between his respite placement and his college. Miss X says this meant she was required to cancel some of Mr Y’s respite placements.
118. The Council said Miss X raised a request for transport for Mr Y in June 2018. The Council said it was unable to arrange transport initially as the respite provider had not confirmed the dates for Mr Y’s stays. The Council said it offered respite provision closer to the family’s new home, but that Miss X refused this.
119. The case records show Miss X first raised her concerns about Mr Y’s transport arrangements at the review meeting in February 2018.
120. In March 2018, Officer E met with Miss X. The notes of the meeting suggest Officer E discussed possible alternative placements closer to home. However, Miss X was concerned these would not meet Mr Y’s needs and was keen for him to remain in his present placement.
121. In May 2018, Officer E contacted the Council’s transport team with a view to arranging Mr Y’s transport to and from college for the start of the new academic year in September 2018. It is not clear from the records whether she received a response.
122. Miss X raised the matter again with Officer E on several occasions in June and July 2018.The case notes show Officer E made a referral for transport to the Council’s Adult Social Care team in July 2018. The Adult Social Care team confirmed in August 2018 that it had arranged transport for Mr Y to his college. However, this does not seem to have included transport between Mr Y’s respite placement and the college.
123. It was not until October 2018 that the Adult Social Care team confirmed it would make the arrangements for Mr Y’s transport between his respite placement and the college. At that point, Officer E requested confirmation from Miss X of Mr Y’s proposed respite stay dates. Miss X provided this information shortly afterwards. Officer E’s subsequent correspondence with Miss X suggests there was then some minor delay while the respite placement confirmed the dates. The transport was eventually confirmed in early November 2018.
124. The evidence shows the Council was aware by February 2018 that Mr Y required transport between his college and the respite placement. I accept the Council needed to confirm Mr Y’s new course and term dates and that this likely caused some delay initially. It does not adequately explain why the transport had still not been arranged by the start of the new academic year in September 2018. This was fault and caused Miss X further inconvenience.
125. In her comments on my previous draft decision statement, Miss X said Mr Y was unable to attend his respite placement between May and November 2018 as a result of problems with transport. However, the evidence does not support this. The Council’s records show Mr Y attended respite four times during this period. Indeed, the records show that, in the period April 2018 to March 2019, Mr Y used his full allocation of overnight respite stays.
126. Nevertheless, I do accept that problems with Mr Y’s transport meant Miss X had less choice around when Mr Y would attend his respite placement.

Complaint handling, communication and Deputyship

127. Miss X complains that the Council failed to respond to complaints appropriately and in keeping with its complaint policy. Miss X says that, when she complained about Mr Y’s care, the Council refused to correspond with her and would not share information with her. Miss X says the Council also told her she would need to apply to the Court of Protection for Deputyship in order to assist Mr Y with his finances.
128. The Council said it had assessed Mr Y’s capacity to make decisions about his finances and his capacity to consent to share information with Miss X. These assessments found Mr Y lacked capacity in both areas. The Council said that, because of this, it could not share information with Miss X initially. However, the Council said it subsequently decided it would be in Mr Y’s best interests for information to be shared with Miss X.
129. With regards to Mr Y’s finances, the Council said it recommends that a person managing Direct Payments on behalf of a service user who lacks capacity applies to the Court of Protection for Deputyship. The Council said that, for Direct Payments to be successful, the person managing them must have the powers of a Deputy.
130. I found no evidence to suggest the Council assessed Mr Y’s capacity until April 2016, by which point Mr Y was 19. At that stage, the Council assessed Mr Y’s ability to make decisions about his finances. The Council found Mr Y lacked capacity to manage and maintain his finances. The assessment noted that Mr Y was supported by Miss X and recommended no further action.
131. In February 2018, Miss X complained about the Council’s handling of the EHC plan process and the delay in conducting Mr Y’s annual review. The Council initially responded to Miss X’s complaint later that month. However, in April 2018, the Council advised Miss X that it could not respond further as it was unable to share information with her about Mr Y. The Council said it did not have Mr Y’s consent to do so and it had not yet assessed his capacity to provide this consent.
132. The records show the Council then undertook mental capacity assessments for Mr Y in May 2018. Mr Y was then 21. The Council assessed Mr Y’s capacity to consent for his information to be shared. The assessment found Mr Y lacked capacity to give consent, but that it would be in his best interests for information to be shared with Miss X.
133. The Council also assessed Mr Y’s capacity to manage his finances. The assessment noted Mr Y “is currently supported by his mum in managing his Direct Payment via an independent living trust and she supports him with DWP benefits as his appointee”. The assessor noted that Mr Y was happy for Miss X to support him with his finances.
134. Nevertheless, the assessment concluded it would be in Mr Y’s best interests for Miss X to apply to the Court of Protection for Deputyship. The assessor noted that, without this legal power, Miss X would be unable to manage Mr Y’s Direct Payments and could not open a bank account on his behalf.
135. The Mental Capacity Act applies for the most part to people aged 16 and over. The MCA Code makes clear that there should be a presumption that a young person has capacity to make a decision unless it is established that they lack this capacity. Section 4.34 of the MCA Code sets out the importance of carrying out a mental capacity assessment when a person’s capacity is in doubt.
136. It is unclear why the Council did not undertake mental capacity assessments to determine Mr Y’s capacity to make these important decisions when he was 16 or 17 as part of his transition to adulthood. In my view, the Council should certainly have done so when Mr Y turned 18.
137. However, the Council did not assess Mr Y’s capacity to manage his finances until he was 19. A further two years passed before it assessed his capacity to consent to share information. This is evidence of significant delay by the Council and represents fault.
138. This delayed the handling of Miss X’s complaint and caused her considerable confusion and frustration. This is understandable as, despite the Council advising Miss X that it could not share information with her in response to her complaint, officers continued to share information about Mr Y as part of the ongoing EHC plan process.
139. I turn now to the Council’s decision that Miss X should apply to the Court of Protection for Deputyship to assist Mr Y with his finances. Miss X feels this should not be necessary.
140. Section 32 of the Care Act 2014 gives local authorities the power to authorise someone to manage an adult’s Direct Payments if that adult does not have capacity to do so. The local authority must satisfy itself that the authorised person is suitable and can manage the Direct Payments effectively to meet the adult’s assessed needs.
141. The Council’s produces practice guidance for managing Direct Payments for adults without capacity. This states that “it is likely that a deputy or holder of power of attorney will be required because they are the only persons with the legal standing to enter into contractual relationships on behalf of the adult.” However, the document acknowledges this is not a requirement under statutory guidance.
142. In this case, the Council says that, while it accepts Miss X is a suitable person, she would be unable to manage Mr Y’s Direct Payments as she has no legal power to enter into contracts with service providers on Mr Y’s behalf.
143. However, in her correspondence with the Ombudsman, Miss X points out that Mr Y’s circumstances have now changed. Miss X says Mr Y no longer attends the day activity centres for which he was previously in receipt of Direct Payments. Miss X says Mr Y’s respite placement is managed as a direct provision by the Council. Furthermore, Miss X says neither she nor Mr Y now employ a personal assistant. Miss X says there is no need for her to enter into contracts on Mr Y’s behalf, therefore.
144. It is ultimately for the Council to satisfy itself that Miss X is an appropriate person to assist Mr Y with his finances. The Ombudsman cannot make this decision. Nevertheless, the evidence suggests Miss X has been fulfilling this supporting role for Mr Y since he became an adult in 2014, without the need for formal Deputyship.
145. Taking this into account, and considering the evidence above suggesting Mr Y’s circumstances have changed, it is my view that the Council should review this decision. The Council has agreed to do so.

Agreed action

146. My final decision is that there was fault by the Council in its handling Mr Y’s case. This fault included delays in the EHC plan process, failure to obtain relevant information and confusion regarding the management of Mr Y’s Direct Payments.
147. Within one month of my final decision statement, the Council will:

• Write to Miss X and Mr Y to apologise for the distress caused to them by the fault the Ombudsman has identified.
• Pay Miss X £750 in recognition of the distress and inconvenience caused to her by the Council’s fault and the time and trouble she was put to pursuing her concerns.
• Pay Mr Y £1,000 in recognition of the impact on him of the fault I have identified in the Council’s management of his EHC plan.
• Review whether it is still necessary for Miss X to apply to the Court of Protection for Deputyship to support Mr Y with his finances. This review should have regard to the statutory guidance and take into account Miss X’s views and any changes in Mr Y’s circumstances.
• Arrange for a CHC checklist to be undertaken for Mr Y.

148. The Council will also provide a copy of this correspondence to the Ombudsman.
149. Within three months of my final decision statement, the Council will write to the Ombudsman to explain what action it will take to:

• Ensure similar delays do not occur in the EHC plan process for other children and young people.
• Ensure relevant reports and assessments are obtained and circulated in accordance with the timescales set out in the SEN Code.
• Ensure there is a robust procedure in place for reallocating cases to another social worker in the event of an officer leaving the Council.
• Ensure there is a robust procedure in place for arranging transport for eligible service users.
• Ensure carer’s assessments are undertaken in a timely manner and in accordance with the statutory guidance.
• Ensure mental capacity assessments are undertaken in a timely manner and in accordance with the MCA Code of Practice when there are doubts about an adult’s capacity to make a specific decision.

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Final decision

150. My final decision is that there was fault by the Council in its handling of Mr Y’s EHC plan and the social care support it provided to him and Miss X. In my view, the actions the Council has agreed to undertake represent an appropriate and proportionate remedy to the injustice arising to Mr Y and Miss X from this fault. I have now completed my investigation on this basis.

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Parts of the complaint that I did not investigate

151. In her correspondence with the Ombudsman, Miss X has raised concerns about the financial assessments undertaken by the Council for Mr Y and his assessed contributions to his care. While I note Miss X’s concerns, these matters were not included in the agreed scope of my investigation. Miss X will need to raise these issues as part of a further formal complaint to the Council before the Ombudsman can consider them.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman