Summary: Mrs X complained about the way the Council handled the Education, Health and Care (EHC) Plan process for her two children B and Z. The Council was at fault when it failed to request any input from Adult Social Care for B and it delayed in involving Children’s Social Care Services for Z. The Council also delayed in completing B’s annual reviews in 2018 and 2019. The Council has agreed to make Mrs X a financial payment to remedy the frustration and time and trouble this caused her and also to remedy the lost provision Z experienced. There was no fault in the Council’s decision not to refund Mrs X the costs she paid for B to receive care at Centre F one day a week up to the age of 18 years old.

The complaint

1. Mrs X complained about the way the Council provided support to two of her children, B and Z.
2. In relation to Child B, Mrs X complained the Council:
• ceased B’s Statement in 2015 and refused to place him on an Education, Health and Care (EHC) Plan until 2017, although his needs did not change.
• has refused to refund the costs of B’s care at his day care facility (Centre F) from September 2015 to September 2016.
• wrongly advised her to use B’s Disability Living Allowance to fund his placement at Centre F.
• failed to carry out a proper transition from children’s to adult’s services prior to B’s 18th birthday.
3. In relation to Child Z, Mrs X complained the Council:
• failed to carry out a proper transition when he moved from school to college; and
• is refusing to update his EHC Plan even though it is inaccurate and out of date.
4. In addition, Mrs X complained the Council failed to meet the statutory timescales when it carried out B and Z's EHC Plan annual reviews in March 2019.
5. Mrs X said the whole family has been affected financially and emotionally from the actions of the Council.

Back to top

The Ombudsman’s role and powers

6. 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)
7. 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)
8. In this case, Mrs X has provided good reasons why she was unable to appeal or complain at the time the Council ceased Child B’s Statement. Therefore, I have exercised my discretion and looked at B’s EHC Plan transfer review in 2015.
9. 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)
10. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
11. 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)
12. 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

13. I spoke to Mrs X and considered her view of the complaint and the information she sent me.
14. I made enquiries of the Council and considered its response. This included copies of B and Z’s EHC Plans, correspondence with Mrs X and paperwork relating to Z’s last annual review.
15. I wrote to Mrs X and the Council with my draft decision and took their comments into account before I made my final decision.

Back to top

What I found

EHC Plan legislative background

16. In 2014, the law for special educational needs and disabilities (SEND) changed. Previously, a child or young person with SEND might have a Statement. The Children and Families Act (2014) introduced a more holistic approach to meeting the needs of child or young person with SEND by requiring councils to replace Statements with Education, Health and Care (EHC) Plans.
17. EHC Plans set out the child’s special educational, social and health needs and what arrangements should be made to meet them.
18. The Ombudsman cannot change an EHC Plan if a parent disagrees with it; only the Tribunal can do that.
19. The process of assessing a child for an EHC Plan should be co-ordinated. Therefore, when a council carries out an EHC Plan assessment, it must seek advice and information, where relevant, from the following people or organisations:
• the young person and/or their parents;
• educational advice from the head teacher;
• medical advice from a health care professional;
• psychological advice from an educational psychologist;
• advice and information in relation to social care; and
• advice and information in relation to the young person preparing for adulthood if the young person is in Year 9 or above.

Reviewing an EHC Plan

20. Within 12 months of the date the EHC Plan was issued, councils must hold a review meeting and issue a decision to amend or cease the EHC Plan, or to keep it the same. If the Council is amending the EHC Plan, it must issue the final amended Plan within eight weeks of the date it issued the decision to amend it.
21. Thereafter, councils must carry out a review meeting annually.

Ceasing an EHC Plan

22. A council may cease to maintain a Statement or EHC Plan only if it decides:
• it is no longer necessary to continue to maintain the Statement or Plan, or
• the council is no longer responsible for the child or young person.
23. Where, following the consultation, the council decides to cease to maintain the child or young person’s EHC Plan, it must notify the child’s parent or the young person, and the institution named in the EHC Plan. There is a right of appeal against the decision to cease the Plan.

Transition to adult care

24. The statutory guidance states that for a young person with an EHC Plan, councils should ensure transition to adult care and support is well planned, integrated with the annual reviews of EHC Plans and reflects existing special educational and health provision that is in place to help the young person prepare for adulthood.
25. After carrying out the transition assessment, the council must give an indication of which needs are likely to be regarded as eligible needs so the young person understands the care and support they are likely to receive once children’s services cease.

Care Act 2014

26. The Care Act 2014 says that councils have a duty to meet an adult’s eligible needs. Eligible needs include developing and maintaining family or other personal relationships and making use of facilities or services in the local community.
27. If an adult has eligible needs, the council must carry out an assessment to establish what care it must provide.

Disability Living Allowance

28. Disability Living Allowance (DLA) is a non-means tested benefit to help towards the costs of bringing up a disabled child. The care component of DLA can be paid for a child who needs help with personal care, supervision or watching over. The held the child needs must be substantially higher than the help needed by a child of the same age without a disability or health need. There are three different rates of the care component of DLA.

What happened

29. This complaint concerns two of Mrs X’s children, B and Z. Both have a number of conditions including Autistic Spectrum Disorder.
30. Both B and Z receive the care component of DLA.

Child B

31. B was born in 1998. B was formally classed as a child in need. However, in 2015 the Council’s Children’s Social Care Team’s involvement with him stopped as it considered it was meeting B’s social and leisure needs through its Family Support Team.
32. Up until 2015, B had a Statement of SEN. This specified the educational support he needed. The Statement was reviewed each year but had not changed substantially since 2009.
33. At this time, B attended College C for four days a week. His course included training related to life and independence skills. On the fifth day, B attended Centre F. This is a facility for young people and adults with learning difficulties which provides work experience. Attendance at Centre F was not specified in B’s EHC Plan. The cost of Centre F was £54 a day which Mrs X paid for privately.
34. In 2014, the law for SEND changed, requiring councils to replace Statements with Education, Health and Care (EHC) Plans. Therefore, in 2015, when B was 17 years old, the Council carried out a review to decide whether to transition him from his Statement to an EHC Plan. The transition review report shows the Council sought information and advice from B and his parents, the school, including its special educational needs coordinator, an organisation providing advice on transitioning to adulthood, a paediatrician and the Council’s educational psychologist.
35. The findings of the review were that B no longer had any need for specialist therapy and his needs could be met within his current mainstream educational setting, College C.
36. The Council wrote to Mrs X in April 2015 to tell her it was ceasing B’s EHC Plan. It advised Mrs X that she had a right of appeal to a Tribunal if she disagreed with the decision. For personal reasons, Mrs X stated she was unable to appeal the decision at that time.
37. Mrs X asked the Council to provide her with direct payments to pay for B to go to Centre F. A Council assessor carried out a child and family assessment in August 2015. This stated “[B] clearly cannot be left unattended…both parents need to work… [B] does receive DLA which is used for supporting all of [B’s] interests… parents have a trust fund set up for him which they pay the bulk of his DLA into… [B’s] additional care needs and vulnerabilities, his right to an ordinary life and opportunities to develop his independence and skills and his parents’ needs as carers of him as a disabled child make this request for support a reasonable one… [this] should not mean it is viewed as child care alone. Childcare would not be a responsibility for working parents of a non-disabled 16 year old”.
38. The child and family assessment was considered by the Council’s Children with Disabilities Panel. The Panel refused Mrs X’s request that the Council should fund attendance at Centre F and wrote to her on 11 November 2015. The letter said that although the Panel recognised B was vulnerable and would always need support and care to meet his basic needs, he “has abilities and can, in settings specifically set up for young people with additional needs, manage independently with some staff guidance and support… aside from providing [B] with further learning and social opportunities, the need for this day service is to enable you to work… childcare is deemed the responsibility of a parent to provide… [B] is in receipt of the high rate care component… of DLA… provided to meet the additional costs… parents of children with disabilities would not ordinarily have to fund… it is for both these reasons the panel has declined to fund a day a week at [Centre F].”
39. B continued to attend Centre F once a week which was privately funded by Mrs X.
40. In 2017, when B was 18 years old, College C asked the Council to assess his special educational needs. The Council wrote to Mrs X in July 2017 to inform her that it proposed to assess B for an EHC Plan and asked for her views.
41. The Council carried out the assessment and under the social care section, the resulting EHC Plan stated B was “not known to Social Care”. The Council did not refer B to its Adult Social Care (ASC) department or advise Mrs X to do so.
42. The Council wrote again to Mrs X in August 2017 with a copy of the proposed final EHC Plan. This named Mrs X’s preferred educational placement, College D. Mrs X requested further amendments.
43. B went to College D, in September 2017 after the summer holidays.
44. The Council issued B’s finalised EHC Plan in November 2017. This named College D as B’s educational placement. It did not specify B needed any social care and stated that his special educational needs could be met within the mainstream setting. By this stage B was attending College D for three days a week, and at Mrs X’s cost, Centre F one day a week.
45. Mrs X approached the Council’s ASC department and asked it to assess B. ASC carried out the assessment in May 2018 and determined B had eligible needs. ASC awarded B direct payments to cover the cost of his day care provision on the two days he was not at College D. ASC backdated this to when B turned 18 years old in 2017.
46. On 3 May 2018, College D carried out B’s annual EHC Plan review and on 9 October 2018, the Council issued a revised EHC Plan. This stated B attended College D three days a week and attended Centre F and a second centre, Centre H, on the other two days. The EHC Plan specified ASC would fund both days’ care.
47. On 25 March 2019, the Council began an early annual review of B’s EHC Plan. It issued Mrs X with the proposed amended EHC Plan on 6 June. Mrs X provided amendments to B’s EHC Plan on 24 June.
48. B’s case worker requested changes to the health and social care provision in B’s EHC Plan on 8 July. Social Care responded on 11 July and Health responded on 30 August. The Council issued B’s draft amended EHC Plan on the same day. Mrs X consented to the EHC Plan, also on the same day, and the EHC Plan was finalised on 2 September 2019, ten weeks after the notice to amend B’s EHC Plan was issued and 23 weeks after the annual review meeting took place.

Child Z

49. Z was born in 2003. He was transferred from a Statement to an EHC Plan in August 2017.
50. The Council began Z’s annual review in August 2018. Z and Mrs X provided their comments in September 2018. Between October and December 2018, the Council received reports from Health, Occupational Therapy, Speech and Language Therapy and Children’s Mental Health.
51. In January 2019, the Council received Z’s educational psychologist’s report.
52. In February 2019, the Council requested its children’s social care section began an assessment of Z.
53. The Council issued Z’s final amended EHC Plan on 25 March 2019. This did not contain details of any social care support.
54. Z’s social care assessment was completed in April 2019 and funding was approved at that time. Z was placed on a child in need plan and assessed as requiring 6 hours social care support a week during term time and 20 hours social care support during the school holidays.
55. The Council informed Mrs X that the funds for Z’s social care provision were available for her to use in April. However, Mrs X complained that the Council did not make the first payment until June 2019, backdated to April 2019.
56. During my investigation, the Council said it did not request input from children’s social care at the start of the process because the Council and Mrs X were exploring different educational placements. The Council said that because one placement was for 5 days a week and the other was for 2 ½ days a week, it was not possible to know how much social care support Z would need. It said once it had this information, it made a referral to children’s social care and funding via direct payments was agreed from 1 April 2019. However, Mrs X did not identify appropriate social care until June 2019, around two months later.
57. Mrs X also contacted the Council and asked it to amend Z’s EHC Plan to reflect his social care needs. The Council informed Mrs X that this support would be included when Z’s annual review took place. During my investigation, the Council said that the college Z attends would arrange and co-ordinate the review because it was not a statutory transition review and the college had its own system for carrying out reviews.

My findings – Child B

The ceasing of B’s EHC Plan in 2015

58. 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.
59. When the Council decided to cease B’s EHC Plan, Mrs X had the right to appeal the Tribunal. She informed me that because of significant family events taking place at that time she was not able to. I have considered what Mrs X told me and concluded she had good reasons why she was unable to appeal to the Tribunal. Therefore, I have exercised my discretion to and considered whether I should look at these events.
60. The Ombudsman can look at the EHC Plan assessment process. However, we cannot look at a council’s decision to cease an EHC Plan or to not transfer a young person from a Statement to a Plan. Only a Tribunal can do that.
61. Therefore, to look now at the process followed by the Council in 2015 would not achieve a meaningful outcome. Even if I was to find fault, I cannot say but for that fault, whether B would have transferred to an EHC Plan. Ideally, Mrs X would have appealed the Council’s decision to not transfer B, but she felt unable to do so at the time, and I cannot hold the Council responsible for this. We cannot know what the outcome of a Tribunal hearing would have been, and I do not have the jurisdiction to comment on these matters. Therefore, I will not investigate these matters further.
62. Mrs X also said that she did not receive the Council’s letter informing her of her appeal rights. The Council has sent me a copy of the letter appropriately dated. I cannot say why Mrs X did not receive the letter. However, in either case, Mrs X would have been unable to appeal at that time for personal reasons. I will not investigate this matter further.

Funding of Centre F prior to B turning 18 years old and the use of DLA payments

63. Prior to deciding whether to fund Centre F, the Council carried out a child and family assessment. The assessment was detailed and robust. It specified the reason for Mrs X’s request for funding Centre F, the relevant legislation relating to B’s rights and Mrs X’s rights as a carer, the details of how the family utilised B’s DLA and the arguments around whether this was a request for social care or childcare.
64. The Council’s Panel which considered the request stated that B’s social care needs could be met through other avenues. It therefore decided Centre F was required for childcare, and it did not have a duty to pay for this. The Council said Mrs X should use the care component of B’s DLA to pay for this.
65. The care component of DLA is paid to a child who needs help with personal care, supervision or watching over. The child and family assessment recorded the family saved the majority of B’s DLA. Therefore, the Panel was entitled to conclude it was appropriate and affordable for Mr and Mrs X to use the care component of B’s DLA to pay for Centre F.
66. The law says councils should consider how to support carers to work or to access education, training or leisure facilities. The Panel response stated B could only manage “with some staff guidance and support” but failed to explain how B would receive guidance and support on the day he was not in college when his parents were at work or in education, other than at a day care centre. There is no evidence therefore that the Panel considered Mr and Mrs X’s work and educational commitments in line with legislation when it made its decision and this is fault.
67. Although the Council cannot demonstrate it considered Mrs X and her husband’s needs as carers, I do not consider, on balance, that it would have reached a different conclusion if it had done so. This is because it decided B’s social care needs were being met through college and family activities. Therefore, the placement at College F was to address childcare needs. The Panel considered it was affordable for the family to use B’s DLA to fund the placement whilst Mrs X and her husband worked. Therefore, I cannot say Mrs X experienced a significant personal injustice from the Council’s fault.

B’s 2017 EHC Plan assessment and transition to Adult Social Care

68. The process of assessing a child for an EHC Plan should be co-ordinated. Therefore, when a council carries out an EHC Plan assessment, it must, amongst other things, seek advice and information in relation to social care, including adult social care where relevant because of the child’s age. When College C requested the Council carry out an assessment to determine whether B required an EHC Plan, the Council failed to refer him to adult social care for an assessment. This is fault.
69. As a result, the referral occurred only when Mrs X contacted ASC.
70. The Council has already admitted it was at fault for its failure to refer B to adult social care and has refunded Mrs X the costs of the care she paid for B at Centre F since he turned 18 years old. This is satisfactory to remedy the injustice this fault caused Mrs X.

B’s 2018 and 2019 annual reviews

71. Where a Council intends to amend an EHC Plan, the process must take no longer than 12 weeks from the date of the review meeting. For both the 2018 and 2019 annual reviews, the Council took around 23 weeks. This delay is fault.
72. As a result, Mrs X experienced frustration and time and trouble chasing the Council because of the delays in the EHC Plan process. However, B continued to receive the support specified in his Plan. Therefore, on the evidence so far, I cannot say he experienced a significant personal injustice.

My findings – Child Z

Z’s 2019 annual review

73. The law says councils must carry out a first review after an EHC Plan has been issued within 12 months of the date the EHC Plan was issued. Where a Council intends to amend an EHC Plan, the process must take no longer than 12 weeks from the date of the review meeting.
74. The Council placed Z on an EHC Plan in August 2017. This means it should have ensured Z’s annual review meeting was carried out and the decision to amend, keep the same or cease Z’s EHC Plan was made by August at the latest of each subsequent year.
75. In 2018, the Council did not begin the review process until September. It then did not issue Z’s final EHC Plan until March 2019, 26 weeks after the process began. This is a delay of around 18 weeks and is fault.
76. Funding for Z’s social care was made available and Mrs X informed of this from April 2019.
77. When Children’s Social Care responded in April 2019, it specified Z should receive 6 hours social care a week during term-time and 20 hours a week during school holidays. Mrs X was informed the direct payments had been approved to pay for Z’s social care once she had found an appropriate provider and Z started to receive this care from June 2019.
78. If the Council had acted within the statutory timescales, it would have completed the annual review process around November 2018. Mrs X experienced difficulties sourcing support for Z but this was in place around two months after the direct payments were in place. Taking this delay into account, if the Council had acted in line with the statutory timescales, I would have expected the Council to have approved direct payments the following month, in December 2018 and for Mrs X to have sourced Z’s provision by around February 2019. Instead, Z did not begin to receive this provision until June 2019, which is a delay of around five months. This is fault.
79. As a result, Z was caused an injustice because there were delays in the provision of support that he needed.
80. Mrs X also experienced frustration and time and trouble chasing the Council because of the delays in the EHC Plan process. This was compounded by the fact she was also chasing the Council to complete the annual review process around B’s EHC Plan which was also taking significantly longer that it should have done.
81. Mrs X wants the Council to amend Z’s EHC Plan to include the social care provision he now receives. In its response to my enquiries the Council has said that this year’s review process would be co-ordinated by Z’s college which had its own system for reviews.
82. Although the Council is entitled to request the educational establishment co-ordinates the review process, it maintains responsibility for ensuring it is carried out in accordance with the law and to the right timescales. In Z’s case, the Council should have ensured Z’s review was carried out and a decision whether to amend or keep his EHC Plan the same was made by August 2019. The Council’s failure to do so is fault.
83. Although Z is now receiving the social care provision he needs, and so I cannot say he has experienced an injustice, Mrs X has experienced frustration and time and trouble in pursuing this matter.

Back to top

Agreed actions

84. Within one month of the date of the final decision, the Council has agreed to:
• apologise to Mrs X for the unnecessary frustration and time and trouble she experienced because of the Council’s faults identified in this decision statement;
• pay Mrs X £500 as an acknowledgement of the prolonged frustration and time and trouble she experienced when the Council delayed in finalising B and Z’s EHC Plans in line with the statutory timescales and when she had to make her own referral to Adult Social Care for B; and
• pay Mrs X £1000, on behalf of Z, for the social care provision he missed from February to June 2019 for her to use as she thinks best for the benefit of Z’s social care needs.
85. Within three months of the date of the final decision the Council has agreed to:
• carry out an audit of 10% of children on an EHC Plan to determine how many received their 2019 annual review in line with the statutory timescales and any delays experienced by each child. The Council should report its findings to the relevant overview and scrutiny committee;
• review its procedures to ensure it requests input from children’s and adult’s social care during the EHC Plan assessment and review process, complying with statutory timescales; and
86. The Council has agreed to provide the Ombudsman with evidence it has carried out these recommendations.

Back to top

Final decision

87. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman