Summary: Ms X complained the Council failed to deliver the short breaks provision set out in her sons’ Education Health and Care plans from September 2018, and failed to provide timely information about changes to that provision following a procurement exercise. She also complained about a lack of support for her sons in their transition to adult services. The Council was at fault for a delay in communicating in writing about the changes it was making to its short breaks service, a failure to deliver some of the provision Ms X’s sons were entitled to in September 2018, a failure to start planning for their transition to adulthood early enough and significant delays in the complaints handling process. It should make a payment to remedy the injustice caused by the disruption to services and Ms X’s time and trouble in pursuing the matter. It should also review its processes.

The complaint

1. Ms X complained the Council failed to deliver the provision set out in her sons’ Education Health and Care plans from 1 September 2018 onwards, and failed to provide timely information about the changes in the support it offered from 1 September 2018.
2. Ms X also complained the Council failed to support her sons in their transition to adulthood.
3. Ms X says the lack of provision caused an injustice to her sons because they no longer had access to activities that were important for their social development. It caused an injustice to Ms X who had to provide additional hours of care, which meant she could no longer continue to work outside the home. She says it also had a negative impact on the family as a whole, because they did not get respite from the caring role.

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The Ombudsman’s role and powers

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
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. This complaint was made within 12 months of the stage 3 panel, which was the final stage of the statutory complaints process. However, it relates to events more than 12 months before the complaint was made. I exercised discretion to consider whether there was a loss of provision for Ms X’s children from 1 September 2018 and the Council’s consultation with parents in the period prior to the changes in provision. This was because it appeared there may have been a significant personal injustice as a result of a lack of provision, Ms X had been pursuing the Council about this throughout and I was satisfied there would be sufficient records to make a robust and defensible decision.
8. 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

9. I considered:
• the information provided by Ms X and the Council.
• relevant law and guidance, as set out below.
• our guidance on remedies.
10. Ms X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Education Health and Care plans

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs, including any need for support from children’s social care, and sets out the arrangements that should be made to meet those needs.
12. The EHC plan will be reviewed at least annually. The council is responsible for ensuring the support arrangements set out in the EHC plan are delivered.

Chronically Sick and Disabled Persons Act 1970

13. Section 2 of this Act sets out the services councils must make available to parents of disabled children. This includes short breaks and respite care. Short breaks can take many forms, including access to play schemes. Where a short break cannot take place at the child or young person’s home or in a community-based setting until the 1970 Act, the council can provide services under section 17 of the Children Act 1989.

Children Act 1989

14. Section 17 of this Act says a child or young person is “in need” if they are disabled. Councils have a duty to assess the need and provide appropriate services to meet the assessed needs.

Direct payments

15. Where there is a need for care and support for disabled children and young adults, the Council can provide or commission services to provide the support or it can make direct payments to the family so they can arrange care and support themselves.

Transition from children’s services to adult social care

16. When a child reaches age 18, they are legally an adult and responsibility for meeting their needs moves from the council’s children services to its adult services. The legal basis for assessing their needs changes from the Children Act 1989 to the Care Act 2014. However, councils can decide to treat a children’s assessment as an adult assessment and can also carry out joint assessments.
17. Statutory guidance says transition assessments should begin when the council can be reasonably confident about what the young person’s needs for care and support will look like when they turn 18. However, for a young person with an EHC plan, the process should begin in year 9. The purpose of the assessment is to provide the young person and their family with information so they know what to expect in future and can prepare for adulthood.
18. The assessment must identify all the young person’s needs for care and support, and should identify the outcomes the young person wishes to achieve. The assessment should also consider whether the carer is able to continue in their caring role after the young person turns 18.
19. After completing the transition assessment, the council must give an indication of which of their needs are likely to be “eligible needs” under the Care Act 2014, and which are not. This is so they and their carers can understand the care and support they are likely to receive and can plan accordingly. For those needs that are not “eligible” the council must provide information and advice on how those needs can be met.
20. If transition assessment and planning is carried out effectively there should be no gaps in the provision of care and support. However, if adult care and support is not in place when the young person turns 18, the council must continue providing the services under children’s legislation until it is in place or until it decides the young person does not have “eligible needs”.

Children’s statutory complaints process

21. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. The Council should respond to the complaint at stage 1 within 10 working days, which can be extended by a further 10 working days for more complex complaints or if an advocate is needed.
22. At stage 2 of this procedure, the Council appoints an investigating officer to investigate the complaint and an independent person, who is responsible for overseeing the investigation. The stage 2 investigation should take 25 working days, with a maximum extension to 65 days.
23. If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. The statutory process states the stage 3 panel should be held within 30 working days and issue its findings within five working days.
24. The statutory process states the council must respond to the panel’s recommendations within 15 days of receiving its report. If it did not accept the panel’s recommendations it should explain its reasons and invite comments from all the panel attendees, including the independent person, in developing its response.
25. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

Background

26. Ms X has two sons, A and B, who are disabled and have EHC plans, which include short breaks support.
27. In December 2017, the Council decided to review the way it provided services to children and young people with special educational needs and disabilities. As part of this process it consulted with an organisation representing parents and providers. Under the new framework, providers were invited to tender for contracts to provide services and the number of approved providers of short break support was reduced from 27 to nine. The procurement process was delayed, which meant the Council was not able to give information about the new arrangements until late August and they were not in place on 1 September 2018.
28. Ms X made a number of complaints about the process and the lack of provision for her sons from 1 September 2018. The Council considered the complaints under the statutory children’s complaints process. A stage 3 panel was held in June 2019. It upheld all three of the heads of complaint. It agreed there was a lack of provision of short breaks for A and B due to delays in procurement, no meaningful consultation about the changes, and a failure to publish updated details about its Local Offer and short breaks provision. It also acknowledged delays in the complaints handling process. It recommended the Council took certain action, including considering a payment to remedy the lost support for A and B.
29. The Council did not agree with all of the stage 3 findings and did not agree with all the recommendations. It did not agree that A and B were without all short breaks support and set out the support it had provided and that was available to replace support set out in their EHC plans. It offered to pay £1,000 each to A and B for the impact of the faults accepted, and £1,000 for the family for distress caused, and their time and trouble pursing the complaint.
30. Ms X was unhappy with the Council’s offer, which she said did not put them back to the position they would have been in but for the faults as suggested by the stage 3 panel. She was also unhappy with the time taken to complete the investigation of the complaint and with the Council’s decision to reject the stage 3 panel’s recommendations.

Consultation and information to families

31. The Council accepted there were delays in the procurement process. This meant services that were due to start on 1 September were not provided until mid September 2018.
32. It also meant families were not sent information about the new arrangements until 31 August 2018. The letter, which was sent to all families with disabled children, listed the provision that was available from September but did not explain how the individual children would be affected by the changes. There was also a delay in updating its website with relevant information for families with disabled children.
33. In its comments on my draft decision, the Council accepted that the final communication to all families was late. However, it says a senior officer was in regular contact with Ms X between April and October 2018 to keep her updated about the procurement and how it affected her family.
34. The Council also accepted that although it consulted with a group representing parents and families, it should have consulted more widely because that group did not represent a sufficiently broad range of views.
35. The Council has reviewed the process and set out the lessons to learn for future procurement exercises. This includes ensuring:
• ongoing and more inclusive consultation with stakeholders and parents;
• sufficient time is built into the process to allow for unforeseen delays; and
• an adequate lead in time for new providers to avoid disruption to service arrangements
36. It says there was a lack of short break provision due to the changes for 26 users, including A and B, who were accessing a Thursday after school club, which stopped. However, it renegotiated with the provider and it resumed the service in mid September 2018. It provided no information about other families affected by the changes to its short breaks provision.

Finding

37. The failure to communicate in writing with Ms X before the end of August 2018 about the changes it was making to the services and how it would affect A and B was fault. That said, I am satisfied the Council did update Ms X, as far as it could, given the issues with the procurement exercise, through regular telephone conversations. The fault caused frustration and worry for Ms X and meant she had to keep pursuing the Council for information.
38. I am satisfied the Council has taken appropriate steps to learn lessons from the procurement exercise to avoid repetition in future.
39. Although there was a lack of provision for other families in the early part of September 2018, the Council did take steps to address the issue, which was quickly resolved. Therefore, no further finding or recommendations are appropriate.

Provision of short break support for A and B

40. A and B have extensive physical and educational support needs. These needs, and the support needed to meet them, are set out in their Education, Health and Care (EHC) plans dated December 2017. The support includes after school clubs, holiday clubs and weekend sessions. It also includes direct payments for Ms X to use to fund support for A and B. The support helps to promote social, learning and developmental opportunities for A and B, as well as providing respite for the family from their caring responsibilities.
41. The Council reviewed the EHC plans in April 2018 and issued amended plans in July 2018. The short breaks provision was not amended. The Council has a legal responsibility to ensure that the support set out in those plans is delivered. It can do this either by arranging or providing services itself or by providing direct payments so families can arrange their own support services.
42. Ms X says the Council was aware prior to the procurement exercise that a key provider was re-organising it services and would not be bidding under the new framework but it ignored her warnings about the impact of this on local families.
43. The Council says it took steps to persuade the provider to continue to provide services in its area but this was not successful.
44. Prior to September 2018, there was a package of short break support for A and B, including 48 overnight short breaks, direct payments, and a range of after school, weekend and holiday clubs. Some of these arrangements were not affected by the changes following the procurement exercise.
45. Ms X says:
• there was no short breaks provision for the first half of September 2018;
• the after school provision, which had previously been available on Tuesdays and Thursdays was no longer accessible because no transport was provided;
• both weekend and holiday provision was reduced;
• some of the provision under the new framework could not meet A and B’s needs because they could not provide one-to-one supervision for them;
• there was no short break provision over the Christmas holidays in 2018-9; and
• she spent so much time either caring for A and B, or trying to arrange care for them, that she had to stop working.
46. She provided copies of emails to show that a provider of weekend and holiday short breaks under the new framework could not meet the demand from families whose disabled children had very complex needs. It could not run every Saturday and could only offer 2 days per week for A and B in school holidays. Ms X says she was previously able to access 4 days per week in school holidays.
47. Ms X also says the Council identified a care provider for overnight stays. Ms X visited the service with A and B but decided it could not meet their needs due to difficulties with the physical accommodation and a lack of confidence the service could meet her sons’ needs. She later discovered the service was not registered with the Care Quality Commission (CQC).
48. The Council agreed there were a number of changes to the provision from September 2018 but it says it arranged a bespoke package for A and B to replace lost provision. It arranged for a provider to transport A and B from their weekend residential provision to the replacement Sunday provision, and provided carers to ensure they had the one-to-one supervision they needed at the Sunday provision. The Council accepts A and B lost alternative Saturday provision between September 2018 and April 2019, amounting to 16 days each but says this was due to a key provider withdrawing its service rather than as a result of the new framework. However, it arranged other support to compensate for this. Its letter to Ms X dated states its panel had agreed:
• an additional 11 hours care for Sunday 9 September 2018;
• one-to-one support from Monday to Friday from 4 to 6:30 p.m, and on Saturdays from 6:30 to 10:30 a.m, through a care agency;
• an additional eight nights at the usual overnight short break provider between September and November 2018; and
• an additional six days at a play scheme.
49. In response to my draft decision the Council
• accepted the after school club was not available from end August to mid September 2018;
• said it was not aware of transport issues for the new provision;
• strongly disputed the overall provision was reduced;
• explained how it had provided the one-to-one supervision needed at the Sunday provision, which did not otherwise provide it; and
• explained the difficulties in arranging short breaks over the Christmas period, which it had discussed with Ms X previously as it was a long standing issue.
50. From January 2019, when A and B turned 18, the Council arranged additional weekend respite, of 9 days (including 4 overnight stays) at a new care provider, and additional short break provision for 34 days each per year out of Borough.

Findings

51. The new framework of short break provision did not meet the needs of A and B, and it was necessary for the Council to arrange bespoke provision for them. The delays in the procurement process meant that the bespoke provision was not in place on 1 September 2018 and, the support that was provided in September, was arranged at the last minute. The Council failed to ensure that support for A and B continued without interruption. This was fault.
52. This fault caused frustration and stress for Ms X. It also meant she had to spend time trying to arrange support for her sons and providing the care herself where it was not possible to do so. It caused injustice to A and B because they needed time to adjust to changes in their support, including time getting to know new support staff. The lack of proper transition meant this did not happen. In addition, new staff supporting them needed time to understand their complex needs and how best to meet them before they could provide an appropriate level of care.
53. Ms X says there was no short break provision during the first half of September 2018. The stage 3 panel accepted this. The Council has not provided evidence to show otherwise so I conclude there was a gap in provision during that period. Although this may have been “compensated” by additional provision later, it left Ms X having to provide additional care for A and B, or spend time trying to make other arrangements for them. Ms X says the disruption caused by the change in provision meant she had to leave her job, which had an impact on her wellbeing, and a financial impact for the family as a whole.
54. Ms X says the new arrangements for short breaks provision amounted to less support overall than those set out in A and B’s EHC plans. The Council argues that the new arrangements amounted to a more generous package than previously. The support was provided in very different ways between September 2018 and April 2019, compared with the arrangements before September 2018. I therefore cannot say which view is correct.

Transition to adult social care

55. A and B turned 18 in January 2019. They were attending a special school and it was planned they would continue to do so until July 2020, following which the plan was for them to attend college. They were shielding during the covid-19 pandemic and not able to attend school. The family provided care whilst A and B were shielding and were paid to do so through direct payments from the Council.
56. Ms X feels she should not have to remain responsible for A and B’s care now they are 18 and, due to health conditions of her own, is not able to continue to do so. She says she asked the Council to identify a supported living arrangement for them but none were identified. She says there is no extended family support and there are few services available locally now A and B are adults. She says A and B no longer have access to day centres at weekends and in the holidays.
57. The Council disputes Ms X asked for a supported living arrangement. The transition assessment was completed in December 2018, after 12 months of work with the family by an independent social worker on behalf of the Council. The assessment shows Ms X wanted A and B to live together in a property arranged by the family and close to the family home, with care provided by a preferred provider. A and B were 18 in January 2019 and the plan was the property would be available for them to move into in April 2019.
58. The Council says the plan, as agreed with the family, was fully funded, but the family’s preferred provider struggled to recruit sufficient staff with the experience and knowledge needed to meet A and B’s needs. Therefore, they continued to live in the family home until January 2020. Between August 2019 and January 2020, care providers shadowed the care provided at home and other settings as preparation for their move.
59. A and B also accessed day care centres at weekends and in school holidays, including some overnight provision, from April 2019 to December 2019. Their care and support plans provide for monthly respite. The care and support plans also state there will be short breaks provision on Saturdays and Sundays but do not specify how many hours should be provided.

Findings

60. For young people with EHC plans, transition planning should start in year 9, when they are around 14 or 15. It is clear there was some transition planning around education but transition planning about accommodation and care did not start until a year before they turned 18. Given their complex needs this was not sufficient time for arrangements to be effective when they turned 18. This was fault but did not cause a significant injustice because the accommodation the family were arranging for A and B was not available until April 2019.
61. The family identified a preferred provider but that provider was not able to recruit sufficient staff. The Council was supporting the family’s choice. The delay in supporting the move to their own accommodation was not as a result of fault by the Council.
62. Council records show A and B did access day care centres at weekends and in school holidays but I cannot say if this was in line with the care and support plans because the plans are not sufficiently specific to enable me to do so. In addition, the short break provision has changed since the EHC plans in July 2018 and the EHC plans have not yet been updated. The failure to set out the provision in sufficient detail to ensure that the delivery can be monitored against the plans was fault. This fault means there is uncertainty about whether A and B received the support they were entitled to.

Complaints handling

63. Ms X first complained to the Council on 31 July 2018 and the Council’s adjudication letter (following the stage 3 panel) was sent on 15 July 2019. This was about four months longer than the statutory timescales, allowing the maximum time at each stage, and for end of year holidays.
64. The Council says this was because of the complexity of the case. It has provided a chronology of the complaints process, which I have considered. This indicates the delays were at stage 2 of the process. The stage 3 panel found the Council had not kept Ms X updated during the process.
65. Ms X is also unhappy that although the stage 3 panel upheld all the complaints and made recommendations, the Council did not accept the panel’s findings and recommendations. It did not discuss the case with the independent person appointed to oversee the statutory complaints process before writing to Mrs X to say it did not agree the stage 3 panel’s findings and recommendations.

Finding

66. There were significant delays in the complaints handling process. The Council also failed to keep Ms X updated. This was fault.
67. The stage 3 panel was critical of the stage 2 investigation, which it said did not probe the issues sufficiently. This was fault but, apart from the resulting delay, any injustice caused by a lack of questioning at stage 2 has been remedied by the stage 3 panel and this investigation.
68. The Council is not obliged to accept the findings and recommendations of the stage 3 panel. However, the statutory process says it should explain its reasons and invite comments from all the panel attendees, including the independent person, in developing its response. It did not do so. This was further fault. This fault caused additional frustration for Mrs X.
69. The Council has agreed to change its processes to ensure this happens in future.

Agreed action

70. The Council will, within one month of the date of the final decision:
• Apologise to Mrs X for its failure to communicate in writing about the changes it was making to its services and how this would affect her family until late August 2018, the failure to provide all the short breaks provision for A and B in the first half of September 2018, the failure to start transitional planning for A and B early enough, the failure to set out the short breaks provision in sufficient detail in their care plans to ensure the delivery could be monitored against the plans from April to December 2019, and significant delays in its complaints handling;
• Pay A and B £1,000 each to remedy the injustice caused by the disruption to their support packages; and
• Pay Mrs X £1,000 to remedy the injustice caused to her for the failure to ensure appropriate provision was in place for A and B from 1 September 2018, a further £1,000 to remedy the frustration, stress and her time and trouble in pursuing the Council to ensure it met her sons’ support needs, and her uncertainty over whether they had received all the provision they were entitled to, and a further £500 for failings in its complaints process (£2,500 in total).

Following my draft decision, the Council has provided evidence to show it has already paid £1,000 each to A and B, which is a suitable remedy for them. It has also paid £1,000 to Ms X. It should pay her a further £1,500 so the family receives £4,500 in total.

71. The Council will, within three months of the date of the final decision:
• Review its processes to ensure that it starts the planning for young people to transition to adult services sufficiently early to ensure that plans are in place when they turn 18, and for those young people who have EHC plans, starts the process in year 9;
• Reviews its processes to ensure there are clear records of the short breaks provision it has agreed to provide for a child or young person, and that these are updated appropriately, to ensure it is possible to monitor the delivery of these services against the provision set out in the plans; and
• Review its processes to ensure that it investigates complaints in line with the timescales for the statutory children’s complaints process. Following my draft decision, the Council has provided evidence to show it has already done this.

The Council will report to us on the changes it has made as a result of these reviews.

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Final decision

72. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.
73. 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.

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Investigator's decision on behalf of the Ombudsman