Summary: Mrs X complains the Council failed to provider adequate support to her daughter during the transition to new services, which meant she did not receive support. Mrs X also complained about how the Council communicated about the timeframe for the transition. The Ombudsman intends to find fault with the Council for how it managed the transition to the new provider. The Ombudsman does not intend to find fault with the Council for how decided the timeline for the transition. The Ombudsman recommends a financial remedy and service improvements.

The complaint

1. Mrs X complains the Council failed to suitably manage her daughters support during a transition to a new service.
2. Mrs X complains the Council prematurely ended her daughter’s support package during the transition to a new service.
3. Mrs X complains the Council misled her about why the package was ending prematurely.
4. Mrs X complains the Council’s failure to suitably manage the transition to the new service impacted the support her daughter was entitled to receive and disrupted her education and emotional wellbeing.

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The Ombudsman’s role and powers

5. 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)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

9. I considered information from Mrs X and documents she provided. I also considered information from the Council.
10. I considered comments from Mrs X and the Council on a draft of my decision.
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Legislation and guidance

Education, Health and Care Plans

12. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
13. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
14. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
15. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
16. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

What happened

17. Mrs X has a daughter, Child Y with several disabilities and health care needs. Child Y has an EHCP (Education, Health and Care Plan) and was under a Child In Need (CIN) plan with the Council.
18. In February 2021, the Council proposed a transition plan to move Child Y’s services to a new provider. This was due to the Council needing to find a new provider to the current one due to the ending of its services to Child Y. It set out a transition plan of how it would manage the transition to the new service provider. It accepted that Child Y’s package was complicated and needed ongoing development because of her complex needs.
19. Between February 2021 and April 2021, Mrs X raised concerns multiple times with the Council that the transition plan and EHCP in place was not suitable for Child Y.
20. In April 2021, Child Y’s services were transferred to a new provider, Provider Z.
21. Mrs X complained to the Council about how it had managed the transition to the new provider. Mrs X complained that Provider Z was not able to meet Child Y’s needs and the support set out in her care plan and EHCP. Mrs X felt the new provider

• did not have enough staff to provide the support
• was not fully equipped to meet her daughters needs
• had not been provided with a care plan that realistically reflected her daughters needs and the support she required.

22. The Council responded to Mrs X and told her that it needed to complete the transition within a set time frame due to its obligations for registration to the Care Quality Commission (CQC).
23. Mrs X contacted the CQC and asked for clarification on any deadlines imposed on the Council’s transfer of her daughter’s services. The CQC confirmed to Mrs X that it had not imposed a set time frame for the Council to complete the handover for compliance with the registration.
24. Mrs X complained to the Ombudsman about how the Council handled the transition of her daughters services, and that the Council had misled her in telling her why it completed the handover.

Analysis

Transition and provision

25. Part of Mrs X’s complaint is that Child Y did not have a realistic care plan during the transition period. This left Provider Z without details of Child Y’s needs and how best to support them during the transition period.
26. I have reviewed internal communication between Council staff and minutes of the review meeting conducted after the transition. The Council’s view was that Mrs X had not agreed to the care plan being shared with Provider Z, as she felt it did not meet her daughter’s needs.
27. As part of my enquiries, I asked the Council to provide a copy of the care plan in place at the time of the transition. The Council did not provide a copy of the care plan. However, it did provide a copy of the transition plan which set out how the transition would be managed.
28. Without evidence of a care plan, I cannot determine whether the Council had identified Child Y’s support needs and how this was communicated to Provider Z in preparation for her transition. However, I have seen correspondence between Mrs X and the Council which says that she is concerned about information in the care plan that was out of date or incorrect and that it was created without parental input. I was not provided with any communication from the Council where it addressed these concerns.
29. The Council provided a copy of Child Y’s EHCP, and the proposals from the Provider of what would be in the care plan. However, no care plan has been given to the Ombudsman, and therefore there is no evidence to say the Council provided a robust care plan that reflected Child Y’s support needs.
30. Without an up-to-date care plan, it is likely that Provider Z was not fully informed of its responsibilities towards Child Y, and it is my view that on balance, she likely missed out on some of the support she needed because of the Council’s failure to provide an adequate support plan.
31. This was fault by the Council causing distress to Child Y and to Mrs X. Child Y would likely have been without full support, however it is not clear how long this was for. Mr and Mrs X would also have been distressed about their child not receiving the right support and taking the time and trouble to try and resolve the issues.

Communication with the CQC

32. The Council’s response about why the transition happened the way that it did relied heavily on how it interpreted its responsibilities to the CQC registration procedures.
33. At the time of the transition, the Council was making changes to some of the services it provided, under its CQC registration. This included the service provided to Child Y, which is why it transferred her services to a new provider.
34. The Council first told Mrs X that it was a business decision to ensure it complied with the CQC, and later told Mrs X there had been a deadline set by the CQC for when services must transfer.
35. When Mrs X contacted the CQC, it told her it had not imposed a set timescale for these changes.
36. As part of my investigation, I sought internal communication and decision making evidence about how the Council decided the transition timeframe for Child Y where there were considerations for CQC registration.
37. Although the CQC has confirmed to Mrs X it did not impose a timeframe, I am satisfied the communication between the CQC and the Council shows there was likely an informal timeline that was requested by the CQC officer liaising with the Council. This was not necessarily a formal deadline requested by the CQC, but likely an informal agreement between the CQC officer and the Council officers responsible for ensuring compliance.
38. It was therefore reasonable for the Council to work to the date proposed by the CQC when making its business decision. The Council is able to decide how it arranges and delivers its services inline with business demand and CQC compliance.
39. I find no fault with the Council in how it decided the timeline for transferring Child Y’s services, and how it communicated with Mrs X about its responsibilities to the CQC.

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Agreed action

40. Within 4 weeks of my final decision the Council has agreed to

• Write to Mrs X and Child Y and apologise for the above fault.
• Pay Child Y £500 in recognition of the missed support.
• Pay Mr and Mrs X £300 in recognition of the distress caused to them
• Ensure an updated care plan is provided to both Mr and Mrs X and any current care providers for Child Y.

41. Within 12 weeks of my final decision the Council has agreed to

• Review how it ensures that up to date care plans are completed before any transition to new services, and how it communicates this with professionals and parents/guardians before the transition.

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Final decision

42. I have now completed my investigation. I find fault with the Council for how it handled Child Y’s transition to new services. This meant she likely missed out on support she was supposed to receive. I do not find fault with the Council for how it decided the timeframe for the transition.

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Parts of the complaint that I did not investigate

43. Some parts of Mrs X’s complaint directly refers to the service provided by Provider Z. Services provided by Provider Z are out of the Ombudsman’s jurisdiction and therefore have not been considered in my investigation. Any concerns with Provider Z should be addressed directly with the provider or the CQC.
44. Mrs X also complained about some aspects and support in Child Y’s EHCP. This is also not within the Ombudsman’s jurisdiction and Mrs X has already had the matter considered by the first-tier tribunal.

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Investigator's decision on behalf of the Ombudsman