Summary: Ms B complains the Council has not delivered the provision in her son’s Education, Health and Care plan. This includes the Council failing to arrange a suitable placement and provide speech and language therapy. Ms B also complains the Council has not updated her son’s Education, Health and Care plan and has refused him a service from adult social care. The Ombudsman has found fault with the Council causing injustice. The Council will take action to remedy this injustice.

The complaint

1. Ms B complains on behalf of her son, C. She says the Council has not delivered the provision in her son’s Education, Health and Care plan (EHCP). This includes the Council failing to arrange a suitable placement and provide speech and language therapy. Ms B also complains the Council has not updated her son’s Education, Health and Care plan and has refused him a service from adult social care (ASC).
2. Ms B says this has negatively impacted on C’s well-being.

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What I have investigated

3. I have investigated the actions of the Council in relation to C’s EHCP and ASC.
4. I have not investigated Service X because this is not a service provided by, or on behalf of the Council.

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The Ombudsman’s role and powers

5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. We cannot investigate a complaint if someone has appealed to a tribunal. However, we might investigate whether there may have been a delay in the process which led to the tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
8. 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)
9. 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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How I considered this complaint

10. I considered:
• Ms B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines;
• the Council’s policies and procedures; and
• Ms B and the Council comments on a draft decision.

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What I found

Legislation and Guidance

Education, Health and Care Plans

11. The SEND code of practice: 0 to 25 years gives councils guidance about the special educational needs and disability (SEND) system for children and young people including how to administer EHCPs.
12. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and type of the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution (or, where the name of a school or other institution is not specified in the EHC plan, the type of school or other institution to be attended by the child or young person).
13. We cannot direct changes to the sections about education or name a different school. Only the SEND tribunal can do this.
14. EHCPs should be reviewed by the council at least every 12 months.
15. Within four weeks of the review meeting, the council must decide whether it proposes to keep the EHCP as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person and the school or other institution attended.
16. Where the council proposes to amend an EHC plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice giving details of the proposed amendments, including copies of any evidence to support the proposed changes. The child’s parent or the young person should be informed that they may request a meeting with the council to discuss the proposed changes.
17. The parent or young person must have at least 15 days to comment and make representations on the proposed changes, including requesting a particular school or other institution be named in the EHCP.
18. Following representations from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHCP as quickly as possible and within eight weeks of the original amendment notice.
19. When the EHCP is amended, the new plan should state that it is an amended version of the EHCP and the date on which it was amended, as well as the date of the original plan. Additional advice and information, such as the minutes of a review meeting and accompanying reports which contributed to the decision to amend the plan, should be appended in the same way as advice received during the original EHC needs assessment. The amended EHCP should make clear which parts have been amended.
20. Where an EHCP is amended, the following review must be held within 12 months of the date of issue of the original EHCP or previous review (not 12 months from the date the amended EHCP is issued).
21. When sending the final amended EHCP, the council must notify the child’s parent or the young person of their right to appeal and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services.

Adult Social Care

22. The Care Act 2014 sets out councils’ responsibilities to assess the needs of adults in their area. An assessment identifies an individual’s needs, how they impact on their well-being and the outcomes the person wants to achieve in day-to-day life.
23. Councils must undertake an assessment for any adult with an appearance of need for care and support, regardless of whether the council thinks the individual has eligible needs or their financial situation. Councils must consider all the adult’s care and support needs, regardless of any support being provided by a carer.
24. Councils must involve the adult, their carer if they have one, and anyone else the adult asks to be involved or who has an interest in their welfare. The Care and Support (Eligibility Criteria) Regulations 2014 set the minimum threshold at which needs must be met by a council.
25. An adult’s needs are eligible when they arise from physical or mental impairment or illness; the adult cannot achieve two or more specified outcomes because of those needs; and there is likely to be a significant impact on the adult’s wellbeing.
26. Once a council has determined eligibility, it must provide the person assessed with a copy of their decision. Where a council finds a person has no eligible needs, it must provide information and advice about what can be done to meet or reduce their needs.
27. In this case, the Council uses the ‘3 conversations’ approach to assess needs and care plan:
• Conversation one: Understand what is important to the person and working with them to build connections and build relationships to help them get on with their life independently.
• Conversation two: Work intensively with people in crisis to help them regain stability and control in their life.
• Conversation three: Support the person to build a good life by understanding what a good life looks like to them and their family and helping them to get support so they can live the best life possible. (Partners 4 Change)

What happened

28. C has a diagnosis of Autism, OCD and ADHD. In September 2018 he became 18.
29. This chronology includes key events in this case and does not cover everything that happened.

EHCP

30. C’s EHCP was reviewed in January 2018.
31. In May 2018, C’s education provider, school D, held an emergency review because of concerns about C’s behaviour. C’s timetable changed so he could complete a personal training course. School D told the Council it needed to find a new education provider for C from September 2018.
32. The Council completed a Child in Need (CIN) plan for C and sent a copy to Ms B by recorded delivery. The Council took C’s CIN plan to panel where it was agreed to continue to give C 15 hours support a month through direct payments.
33. In June 2018 there was an incident at C’s home which raised concerns about C’s mental health. Ms B asked the Council for support and CAMHS requested an urgent professionals meeting. A meeting was held in July 2018.
34. In July 2018 C’s education placement at school D ended.
35. Ms B asked the Council to review C’s direct payments because his needs had changed. The panel refused to increase C’s care package. C’s care package stayed at 15 hours support a month to support and promote his social care needs. The Council confirmed Ms B could not use C’s direct payments to pay for Speech and Language Therapy (SaLT).
36. In September 2018, Ms B contacted the Council because it was three weeks into the autumn term and the Council had not found a suitable placement for her son.
37. School D said C could return for the autumn term to complete a personal training course, but he would need 1:1 support to access learning and to support him during unstructured time. School D advised C would need alternative provision from January 2019.
38. School D disagreed about who should pay for C’s SaLT provision. School D said C’s timetable did not allow for SaLT. The Council said funding for SaLT was included in the money it paid for C’s placement at the school. Ms B contacted the Council in October 2018 to ask how C would receive SaLT.
39. An EHCP review meeting was held in November 2018.
40. The Council commissioned a private therapist to deliver SaLT.
41. In December 2018, Ms B made an informal complaint that she had not received a response from the Council about funding for C’s SaLT provision. The Council told Ms B the money she was paying for C’s SaLT provision should be paid by his education provider, school D. Mrs B also complained about the gaps in provision, lack of transition planning and poor coordination between Council departments. The Council said school D should meet the cost of SaLT.
42. Ms B expressed a preference for C to attend education provider E in December 2018. Ms B wanted a residential placement. The Council consulted provider E in January 2019. E said its supported internship programme would not be suitable for C. It told the Council it might be able to offer C a placement in one of its other learning pathways. It advised C to visit the college before making an application. C visited the college and applied to the college in February 2019.
43. The Council told Ms B it was going to amend C’s EHCP and sent her an amended copy. In February 2019, the Council made further amendments and sent Ms B a second revised EHCP.
44. C’s mental health declined in February 2019. School D said he could not attend the school until he was stable.
45. In March 2019, a meeting was held to review C’s EHCP. There was disagreement over the type of education provision C should access. Ms B expressed a preference for a residential placement. The Council decided C’s needs could be met in a mainstream placement. C had told his educational psychologist that he wanted to be in a mainstream placement.
46. The Council consulted education providers F, G and H. College F said it could not offer C a place.
47. The Council issued a final EHCP in March 2019 without a named education provider. Once the EHCP was issued, Ms B had a right of appeal to the SEND tribunal.
48. Because of differences in opinions about C’s needs and how these could be met, the Council referred C for a Care Act s67 advocate to best ensure his wishes, feelings, beliefs, values, desires and outcomes were considered. C declined this support.
49. In May 2019, Ms B appealed sections B, F and I of C’s EHCP to the SEND tribunal.
50. Ms B and the Council came to an agreement about C’s education provider (section 1) in October 2019. They agreed to a non-residential placement at education provider E. The Council accepted social care would need to increase because the placement was not residential. C’s social care provision is being considered by the SEND tribunal.

Transition

51. A transition referral was made to ASC for C in February 2018. C received direct payments for 15 hours of 1:1 support a month. The referral said this money was used to pay for a support worker to support C to access the community and for communication support sessions. C received Personal Independence Payments (PIPs) at the lower rate. Ms B wanted C to be assessed by ASC to see if he met the criteria for a support package post-18.
52. In July 2018, the Council told Ms B C had met his ASC worker and the meeting had gone well.
53. The Council completed the first stage of its assessment of C for ASC in December 2018. Ms B said the area C needed support with was accessing education. She told the Council it would be difficult to discuss other support until a suitable education setting was found and suggested continuing the assessment in mid-January.
54. In January 2019, Ms B asked the Council for support to find accommodation for C. The Council met with Ms B and discussed the types of social care support available and the eligibility criteria.
55. C became homeless in February 2019 and C’s school alerted the Council. The relationship between C and Ms B had broken down. C told the Council he was staying with a friend. The Council visited the property that day to carry out a safe and well check. C said he would stay with his friend for two to three months. The Council spoke to him about accommodation choices.
56. The Council referred C to the enablement team, an external agency that would support him with benefits, housing and health and an external housing provider.
57. School D told the Council C was not staying with his friend and had become homeless. The Council contacted the external housing provider and C moved into supported accommodation that day.
58. In March 2019, the Council completed a mental capacity assessment for C in relation to his care and support needs and accommodation; the Council found “no reason to doubt his capacity”. It also finished stage two of its ASC assessment. An occupational therapist visited C to carry out an enablement assessment; C did not attend the appointment.
59. The Council completed stage three of the assessment in April 2019. It decided C could achieve all the specified outcomes in the Care Act 2014 and therefore was not eligible for ASC support.
60. C left his supported accommodation and moved back in with Ms B. C told the Council this was permanent.
61. C’s relationship with Ms B broke down in August 2019. C declined an offer of accommodation and moved in with a family member. The Council gave C information about his housing options. He said his family would help him and he would contact his social worker if he needed further support.
62. A multi-disciplinary meeting was arranged for September 2019. C and Ms B told the Council they could not attend.
63. The Council offered C six 1:1 sessions around healthy relationships and boundaries. C declined because he was busy at college. He said it was something he would consider in the future.

Complaint

64. In May 2019, Ms B complained to the Council that:
• The Council had not given C or the professionals working with him a copy of its social care assessment.
• The Council did not respond to her on four occasions.
• The Council has not responded to her request for a meeting.
• Council departments did not respond to requests for information to feed into C’s EHCP.
• C’s housing placement is not appropriate.
• C had no choice or control over his housing placement.
• The Council has shown little understanding or recognition of the difficult transition C has undertaken.
• The Council arranged for C to complete a housing application with a support organisation but no one from the Council attended to support C given he has Autism and a poor working memory.
65. The Council responded at stage one of the complaint procedure in May 2019. It did not uphold Ms B’s complaints.
66. The Council responded to Ms B’s complaint at stage two of the complaint procedure in June 2019. It did not uphold any of the complaints. The Council said it had assessed C and decided an enablement plan should be developed. However, C had not attended two meetings to develop this plan and had declined occupational therapy support.

Analysis

EHCP

67. C’s EHCP was reviewed in November 2018; this was less than a year after the previous review in January 2018. The Council sent Ms B notice it would amend C’s EHCP in February 2019; this was out of timescales by three weeks. The three-week delay is not considered to have caused C significant injustice. The Council issued the final EHCP within eight weeks of the notice, in March 2019.
68. The Ombudsman has no jurisdiction where a parent has appealed to the SEND tribunal from the date the SEND appeal right arises (March 2019) until the appeal is completed. Any loss of education or provision during this period which is a consequence of the decision being appealed (eg choice of placement (I) and provision (F)) cannot be considered.
69. The Council has a non-delegable duty to secure provisions in section F of the EHC Plan. Paragraph 9.76 of the Code says that ‘in cases where health care provision or social care provision is to be treated as special educational provision, ultimate responsibility for ensuring that the provision is made rests with the local authority (unless the child’s parent has made suitable arrangements).’
70. Though the Council can arrange for provision (specified in section F) to be delivered by an education provider, if there is significant delay or an obstructive approach by the provider the Council has no alternative but to commission from the private sector to ensure provisions specified in section F are in place. It may then ask the education provider to recoup its costs.
71. Not securing SaLT provision for C is fault. Because of this fault, Ms B had to pay for C’s SaLT provision herself or using C’s direct payments. This placed the financial burden on the family and C missed out on on a service he was entitled to receive, support and promotion of his social care needs.

Transition

72. ASC received a referral for C, and he was introduced to his worker before his 18th birthday.
73. ASC assessed C under the Care Act 2014. It determined that C did not have any eligible needs. This is a decision the Council was entitled to make. I have not seen any evidence of fault in how this decision was reached and so I cannot question its merits.
74. ASC offered C information and advice about housing, health and healthy relationships. It referred C to a supported housing provider; a service to support him with benefits, housing and health; its enablement team; and, for a Care Act advocate. The Council is considered to have fulfilled its duty in relation to paragraph 26; to provide information and advice about what can be done to meet or reduce C’s needs.
75. There was confusion between Council departments about what C’s direct payments could be used for. In the transition referral the Council said C’s direct payments were for a support worker to support C to access the community and for communication support sessions (SaLT). However, when the Council reviewed his direct payments it said they were for support and to promote his social care needs; not to fund SaLT.
76. As paragraphs 69 and 70 explain, SaLT was part of C’s EHCP and its provision should have been secured by the Council; not doing so was fault. Ms B should not have had to use C’s direct payments. Because of the Council’s fault C has missed out on a service he was entitled to receive, support and promotion of his social care needs.
77. The Council has made changes to its practice around direct payments. It has introduced:
• Induction training for direct employers and personal assistants.
• E-learning about personal budgets, direct payments and personal health budgets has been created by citizens.
• Annual direct payment conferences.
• Community-based sessions to provide peer support to direct employers and personal assistants.
• A Direct Payments Challenge Group for its internal workforce to troubleshoot and share good practice.
• Pre-paid cards and access to a 24-hour helpline.

Agreed action

78. Within one month of the final decision, the Council will:
• Put in place a mechanism to ensure recipients of direct payments, or their carers are given clear information about what they can be used for.
• Arrange for any missed SaLT provision to be delivered.
79. Within two months of the final decision, the Council will:
• Pay Ms B £100 for the time and trouble of following up C’s SaLT provision and arranging for it to be delivered privately.
• Reimburse Ms B any outstanding cost of SaLT she paid for out of her own money from the date it stopped being provided by School D to November 2018. Ms B is to provide the Council with invoices from the SaLT provider.
• Reimburse C any direct payments used to pay for SaLT from the date it stopped being provided by School D to November 2018. This reimbursement should be made in the form of support hours for C.
80. The Council should provide the Ombudsman with evidence that the above recommendations have been completed.

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Final decision

81. I have completed my investigation and uphold Ms B’s complaint. Ms B and C have been caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Parts of the complaint that I did not investigate

82. I have not investigated Service X because this is not a service provided by, or on behalf of the Council.

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Investigator's decision on behalf of the Ombudsman