Summary: Mr X complains about the way the Council dealt with an EHCP review and a request for a social care assessment in the context of a young person’s transition to adulthood. We found there was fault that warrants a remedy.

The complaint

1. Mr X acts on behalf of a young person (called Y in this statement) and his family (Mr and Mrs Z). Y is a young man with an Education and Health Care Plan (EHCP) which is maintained by the Council. They complain the Council:
1. failed to respond to Mr and Mrs Z’s requests for advice, support and assistance in finding Y an apprenticeship and supported accommodation;
2. failed to properly consider making transitional arrangements for Y to support him to move from a residential school placement to an apprenticeship and into adulthood;
3. delayed issuing an amended EHCP and failed to issue an amended EHCP after Mr and Mrs Z requested amendments be made. I understand there were review meetings in December 2017, February and March 2018. Then a further review meeting in May 2018.
4. failed to carry out a social care assessment of Y’s needs within a reasonable time period. They say also that the social care assessment report was only sent to them when the Council responded to the complaint six months after the assessment took place.
2. Mr and Mrs Z complain the uncertainty about the support Y would receive caused stress and anxiety to Y and led to them incurring financial losses providing support for their son.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. 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

7. I considered the information Mr X provided and put a proposed summary of the complaint to him before making enquiries of the council.
8. I considered the information the Council and Mr X provided and I considered relevant guidance and legislation.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Care Act 2014

10. Under the Care Act 2014, young people have the right to request transition assessments for adult care. This would enable them to see if they have eligible needs that will be met by adult services once they turn 18.

The SEN Code

11. Chapter 8 of the SEN guidance “Special educational needs and disability code of practice: 0 to 25 years” sets out the importance of planning for adulthood.
12. It states EHCP reviews from year 9 must include a focus on preparing for adulthood. Planning must be centred around the individual. Transition planning must be built into the revised EHC plan and the plan should include support to prepare for higher education or employment.
13. Paragraph 8.10 states preparing for adulthood should include support to prepare for higher education or employment. “Training options such as supported internships, apprenticeships and traineeships should be discussed…”. It also states a plan should include support to prepare for independent living, where a young person wants to live in future and what support they need. It states local housing options, support in finding accommodation, benefits and social support should be explained.
14. 8.13 notes that as young people develop the right the right to make requests and decisions under the Children and Families Act 2014 applies to them directly, rather than to their parents. However, for 16-17 years olds involvement of parents is particularly important.
15. Para 8.55 of the Code states that an EHC plan should be the basis for co‑ordinating the integration of health with other services. Where young people are moving to adult health services, the local authority and health services must co-operate, working in partnership with each other and the young person to ensure that the EHC plan and the care plan for the treatment and management of the young person’s health are aligned. Para 8.56 highlights guidance that identifies the transition from CAMHS to adult services as a priority for action.
16. 8.63 Having carried out a transition assessment, the local authority 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. Where a young person’s needs are not eligible for adult services, local authorities must provide information and advice about how those needs may be met and the provision and support that young people can access in their local area. Local authorities should ensure this information is incorporated into their Local Offer.

What happened

17. Y is a young person with a diagnosis of ADHD, Pervasive Development Disorder (an Autistic Spectrum Disorder) and Oppositional Defiance Disorder. Y has been at a residential school outside of the Council’s area for eight years from the age of 11.
18. The notes from an SEN review meeting in December 2017 set out Y’s needs in detail. They record that Y was making good progress academically but he was still receiving some support to assist him in this. The notes stated Y still needed considerable coaching and support about social interactions. Y had made significant progress with his independence but he still received support with acknowledging the impact of his behaviours, managing workload anxiety and making effective use of his time. The notes also stated Y had a history of finding transitions difficult to manage. For example, changes of location and peer group.
19. Mr X wrote to the London Borough of Bromley (the Council) on 17 January 2018 (when Y was aged 18) to request support to find Y an apprenticeship in the Bromley region.
20. I understand the Council sent some templates of EHCP documents in response but did not address the question raised about apprenticeships. Mr and Mrs Z wrote direct to the Council on 21 February 2018. They asked what apprenticeship opportunities there may be in the Bromley area. They also asked for general advice and guidance for the transition to adulthood and what plans the Council had to support the planned review of Y’s EHCP on 26 February. I understand Mr and Mrs Z received no response.
21. The Council could not provide records of the EHCP review meeting held on 26 February. I understand at that meeting Y stated he wanted to pursue an apprenticeship. Mr X says the meeting concluded that Y’s EHCP should be finalised based on his needs at the time. It was also agreed there would need to be an up to date social care assessment once Y had transferred to adulthood and once he had found a suitable apprenticeship. A plan could then be drawn up to determine what support would be needed.
22. The Council acknowledged a request for a social care assessment had been made for Y in February 2018. The Council provided evidence that a council officer made a referral to the adult care services department on 27 February, the day after the EHCP review meeting. The officer stated the request was being made under Section 9(1) of the Care Act.
23. On 12 March an officer from the Council’s adult social care department tried to call Mrs Z and then emailed her. The Council stated officers needed to understand more about Y’s referral and needed to decide which team was best to deal with the request.
24. A draft EHCP was sent to Mr and Mrs Z on 16 March 2018.
25. On 19 March an officer from adult social care contacted Mrs Z and noted that Y was under the Child and Adolescent Mental Health Services team (CAMHS). They suggested CAMHS would be best placed to carry out a social care needs assessment as a result. The Council told us Y’s case was closed to the Children’s Team in 2015. As Y does not have a learning disability, he was not an open case for the Learning Disabilities team either. As such he was not automatically on the list of children to be assessed before he reached age 18. Y was open to CAMHS, this is why the Council suggested it was most appropriate for CAMHS to carry out an assessment.
26. Mr and Mrs X sent a letter requesting changes to the EHCP on 29 March. I understand no changes were made and the Council sent Mr and Mrs Z a final version of the EHCP on 31 March 2018. The final EHCP set out several areas for further action. It stated:
• Y would be referred to the Multi-Agency Safeguarding Hub (MASH) as an assessment was required for housing.
• A referral would be made to Adult Mental Health Team to ensure a satisfactory transition from CAMHS to adult services.
• Y’s education provision would be reviewed once he had moved into an alternative further education or apprenticeship placement.
27. The Council provided a copy of the EHCP and the covering letter. It explained how Mr and Mrs Z could appeal against the content if they wished to.
28. Mr and Mrs Z told us they felt under pressure to get the EHCP agreed by the end of March 2018. However, they felt the EHCP should not have been finalised without social care input. Mr X told us Mr and Mrs Z sought changes to the final EHCP issued on 31 March.
29. On 15 April Mrs Z wrote to the Council. She disagreed with the Council’s view that CAMHS should carry out the social care assessment. The Council says officers replied on 11 May asking Mrs Z to set out the social care needs that Y had. The Council says it received no reply.
30. I understand a further EHCP review meeting was held on 24 May 2018. This was the review prior to Y’s 19th birthday. Mr X says no social care officer was invited to the meeting. The Council has no record to show what was discussed or agreed at this meeting.
31. On 29 May Mr X wrote to the Council to follow up the meeting. Mr X stated a council officer who attended the review felt many of Y’s needs required evaluation by social care. This was on the basis that his educational needs no longer called for residential support. The family disagreed. They felt it needed to be recognised that Y’s progress to date was achieved in the context of a supported educational environment. They stated Y would still have educational needs when he moved out of the school placement. Mr X noted it was for the London Borough of Bromley to determine Y’s housing needs, not the local council where Y now lived. He said there was a question about whether Y needed supported accommodation or if Y could live independently. He considered Y was caught in the crossfire between the Education and Social Care teams as to who was responsible for meeting Y’s needs.
32. On 4 June a fresh referral was made for the adult social care team to carry out an assessment. On 8 July Mrs Z chased up the request by email. On 11 July in a conversation with Mr Z, the Council arranged to carry out an assessment on 27 July. During the call Mr Z noted Y’s diagnoses and said because the Council placed Y in school out of the Council’s area, he expected the Council to provide housing for Y in that area. He noted Y had now made a life there.
33. A care assessment was carried out on 27 July 2018. The assessor decided Y had no eligible adult social care needs. The report noted Y had long since stopped taking medication for ADHD and was able to keep himself safe and to manage and meet his own needs. The assessment summary noted Mr and Mrs Z understandably wanted Y to have all the resources he was entitled to. They wanted to ensure he transitioned successfully to independent living. However, it was noted that his transition had been effective to date and noted that Y had relished education, training and employment opportunities afforded to him. The assessor stated Y had built relationships and taken opportunities he had in the area around his residential placement. He stated this could potentially be impeded by relocation back to Bromley.
34. The Council decided it had no statutory duty to provide Y with accommodation because his need for accommodation did not arise from a physical or mental health condition. It stated housing advice could be obtained from bodies in the area local to Y’s residential placement. Y could also access some input from local therapy services via a local GP if required.
35. The social care assessment took place on 27 July 2018. The report states it was completed on 17 September 2018. The Council told us it sent the care assessment report to Mr and Mrs Z on 19 September 2018. It stated this was noted on its records. It later told us it was sent on 19 August 2018.
36. In response to our enquiries the Council stated there was a six-week time lapse from the time the assessment was typed up, to the time it was authorised. This it regretted. However, I note the report was only authorised on 17 October 2018. This is nearly a month after the Council says the assessment was sent to Mr and Mrs Z. Mr and Mrs Z say they did not receive the report from the Council, so Y was not aware of the outcome.
37. On 19 September 2018 Mr and Mrs Z told the Council Y had found an apprenticeship but asked how the Council proposed to support him. Mr X says they received no reply, so on 5 October they wrote again stating they felt it was unacceptable that Y was being ignored.
38. On 7 October Mr and Mrs Z told the Council Y had started the apprenticeship. When the Council spoke to the apprenticeship provider they stated Y had not told them he had an EHCP and he had not requested any additional support. The provider did not consider Y needed any additional support.
39. Mr and Mrs Z sent several chasers to the Council between October and January 2019. They say they were acknowledged but not substantively replied to. An internal email on the Council’s records from 6 December 2018 also expressed surprise that Mr X was chasing the assessment. The officer stated they could not understand why Mr and Mrs Z had not passed Mr X a copy of the assessment. This implies the officers understood the assessment had been sent to Mr and Mrs Z already.
40. Mr X sent a letter before action to the Council in December. When the Council responded to this in January 2019 it sent a copy of the care needs assessment. Mr and Mrs Z say this was the first copy of the assessment they received. They disagreed with the assessment findings and the Council’s position. They felt there had been a failure to provide appropriate support to Y.
41. Mr X told us that Mr and Mrs Z had to provide support for Y to find housing in the area in which he now lived. Mr Z also spent one or two days each week with Y to provide a level of stability and organisation. They consider this support should have been provided by the Council as social care. Mr and Mrs Z considered that they encountered costs to support Y, as Mr Z lost working time. They stated the situation has been distressing and stressful.
42. Mr X also noted that Mr and Mrs Z had not been able to go to a SEND Tribunal to challenge the council’s decision not to continue with Y’s EHCP. This was because the Council did not send a letter to confirm this was its decision. They stated, had they been able to do this, they consider Y would have been allocated a learning and skills mentor, which would have cost in the region of £15,000. They considered Y should receive the equivalent amount in compensation. They also sought repayment of their solicitor’s costs.
43. The Council told us in response to a draft of our decision that it ‘will be’ ceasing to provide an EHCP for Y. However, it made clear that it had not taken this decision yet. It stated when the time comes the Council will follow the SEN Code of Practice in ceasing the plan, consulting with Y in doing so.

Was there fault by the Council

Mr and Mrs Z’s requests for advice, support and assistance in finding Y an apprenticeship and supported accommodation

44. Requests were first made for advice and assistance about opportunities in the Bromley area in January 2018. I have not seen a specific response from the Council to these requests.
45. The failure to provide a response to the specific questions being raised by Mr and Mrs Z in early 2018 was fault.
46. However, the requests were based on opportunities that might exist in Bromley. Y’s EHCP set out where to find support in the local community around Bromley by way of a link to the Council’s local offer website. I also note that Y’s wishes were not to locate back to Bromley, so I do not consider there was any significant injustice caused to Y by the lack of response in early 2018 as a result.

Delay issuing an amended EHCP and failed to issue an amended EHCP after Mr and Mrs Z requested amendments be made.

47. I found no delay in issuing Y’s EHCP in early 2018. Review meetings were held in February 2018 and 16 March 2018. A final EHCP was issued on 31 March 2018.
48. I note Mr and Mrs Z requested further amendments towards the end of March. These were not made, but, the content of an EHCP carries appeal rights. Mr and Mrs Z could have appealed if they considered the EHCP should be amended.
49. That said, the final EHCP from March 2018 stated Y’s provision would need to be reviewed once Y had moved from his residential school to an alternative placement or apprenticeship. It also called for both a social care assessment (in relation to housing) and a referral to Adult Mental Health Services.
50. There are no records to show what was discussed at a further review meeting in May 2018, so it is difficult to properly understand the outcome. This was fault. Mr X says that as no social care officer was invited to attend the review, he considered this led to a lack of joined up thinking by the Council and confusion between social care teams. I comment on this below.
51. The expectation was that the EHCP would be updated when Y’s future placement was known. Y had not found an apprenticeship in May 2018 so I don’t consider there was fault in not updating the EHCP at this time. However, given the Council stated that the EHCP would be reviewed when Y moved onto a new placement, it should have been followed up and updated in October 2018. To not update the statement at that time was fault.

Failed to carry out a social care assessment of Y’s needs within a reasonable time period. They say also that the social care assessment report was only sent to them when the Council responded to the complaint six months after the assessment took place.

52. There is evidence that a social care assessment for Y was first requested in February 2018. The EHCP set out two areas in which Adult Social Care teams needed to be involved. The first was an assessment related to housing and the second was to ensure a smooth transition between CAMHS and Adult Mental Health Services.
53. There is evidence a referral was made promptly. However, it stated only that Mr X had requested an assessment under Section 9(1) of the Care Act. It stated it was unclear what the family anticipated social care could offer. There was no reference to the question of housing/independent living that was referred to in the EHCP. Nor did the referral consider Y’s needs in terms of a smooth transition from CAMHS to Adult Mental Health Services.
54. As a result, there seems to have been confusion about the purpose of the referral, whether Y had potential needs and which teams should be involved. Although I note the Council says it attempted contact with Mr and Mrs Z about Y’s needs, Y’s needs and the reason for the referral were known to the Council.
55. The Council did carry out an assessment of needs in July 2018 after further requests by Mr and Mrs Z. But, the fault in the way the original referral was handled led to the delay in carrying out the assessment which was originally requested in February.
56. Mr and Mrs Z say they did not receive a copy of the assessment report. The Council says the assessment was not completed until September when it was then issued. But the evidence casts doubt on this. The assessment report indicates it was not signed off until October. This would be after the Council says it was issued. Mr X was also chasing the assessment report for Mr and Mrs Z, which seems unlikely if it had been received. On balance, it seems more likely than not that the assessment report was not sent to them in September as the Council has stated. So, there was also fault in not sending the report to Mr and Mrs Z.
57. I have considered what impact was caused by the fault in the referral and the failure to send the assessment to Mr and Mrs Z in a timely way. Clearly Mr and Mrs Z were put to the trouble of chasing the report. However, I note also that the assessment report found Y did not have eligible social care needs. So, I found that it caused limited injustice to Y.

Consideration given to transitional arrangements for Y to support him to move from a residential school placement to an apprenticeship and into adulthood

58. The EHCP issued in March 2018 did consider the issue of Y’s transition to adulthood. However, it was strongly based on Y’s attendance at a residential school. It noted Y had developed independent living skills but that he still required oversight and guidance by staff. As I state above in paragraph 51, it was fault that the plan was not updated when the Council became aware of Y’s placement.
59. Y’s transitional needs would be strongly related to Y’s new placement, and what that meant for Y. So, the Council should have ensured that the EHCP plan was reviewed, as it had stated it would be. This is so that it properly considered what changes should be made, at a key transition for Y. I note that his previous EHCP review documents highlighted that transitions could be difficult for Y. The lack of focus on the need to update the EHCP at a key transition was fault.
60. While I understand Y did not want support, and Y excels at practical learning, Mr and Mrs Z explained that they had to support Y to maintain his progress in the NVQ learning element of the course which he fell behind with. It is unclear how much this could have been avoided had the Council ensured the EHCP was properly updated when the Council became aware of Y’s placement. This causes Y some injustice.
61. The Council told us that it would be ceasing the EHCP. Paragraph 9.199 of the SEN Code of Practice allows a council to cease an EHCP if it considers the young person no longer requires the support it provides. Paragraphs 9.205 and 9.206 of the code make it clear that if a council intends to cease to maintain a child’s EHCP it must consult with the parents or the young person and notify them of its decision. They must explain that the young person may appeal against this decision. The Council told us it will comply with this when it makes this decision.

Summary of injustice

62. There was fault in the way the Council responded to Mr and Mrs Z’s request for assistance. There was fault in the failure to update Y’s EHCP and the way the Council dealt with the social care assessment for Y. The fault by the Council understandably led to frustration and Mr and Mrs Z were put to the time and trouble of pursuing the matter because Mr and Mrs Z had to chase the Council on numerous occasions, and they did not receive the social care assessment.
63. I found the fault in respect of the social care assessment did not have a significant detrimental impact to Y. I say this because the social care assessment found Y had no eligible needs, so he did not miss out on provision.
64. The fact that Y was transitioning from a supported residential educational environment into adulthood is significant. Y’s 2017 EHCP review provides evidence that Y could find transitions difficult. There was a need for the Council to ensure this was properly considered as part of the review process. It was clearly intended that the EHCP would be revisited when Y’s placement was known. It was important that it carried through its intention to update the EHCP and it did not do this. This was poor. There is some uncertainty about whether that caused some issues with Y’s academic progress. This injustice should be recognised and remedied. However, I understand that when Y started his apprenticeship he chose not to tell the provider that he had an EHCP and he did not want to receive additional support. When the Council became aware of the placement and contacted the provider, they also did not consider Y needed additional support. So, I found the impact to Y was limited.

Agreed action

65. To recognise the failings in the way the Council dealt with Mr and Mrs Y’s requests for a social care assessment and the failure to update Y’s EHCP, I recommend the Council apologises and pays them £200. This is to reflect the frustration the issues caused and the time and trouble they have spent pursuing the complaint and chasing for responses.
66. To recognise the uncertainty about what additional support may have been possible for Y had his EHCP been updated, and the failure to take account of the need to update the EHCP the Council should pay Y £200.

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Final decision

67. I found there was fault by the Council.

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Investigator's decision on behalf of the Ombudsman