Summary: Mrs X complained that the Council failed to put in place the social care support set out in her daughter’s Education Health and Care Plan following a Tribunal decision in November 2018. We have found fault in the way the Council dealt with the matter. The Council has agreed a suitable remedy to make up for support sessions missed.

The complaint

1. Mrs X complains on behalf of herself and her daughter, Y, that the Council failed to put in place the social care support set out in Y’s Education Health and Care Plan following the Tribunal’s decision in November 2018.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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, sections 26(1), 26A(1) and 34(3), as amended)
3. 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)
4. 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

5. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered the Council’s duties to arrange the support set out in an Education Health and Care Plan. I spoke to a Head of service in Children’s Social Care over the telephone. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
6. 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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What I found

Education Health and Care Plans

7. A child or young person 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. It can apply up to the age of 25. The EHC plan is set out in sections, including the following:
• Section F: the special educational provision the child or young person needs.
• Section H1: any social care provision which must be made for a child or young person under 18 under section 2 of the Chronically Sick and Disabled Persons Act (CSDPA) 1970.
• Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN.
8. A parent or young person may appeal to the Special Educational Needs and Disability (SEND) Tribunal about the description of the child’s needs, the special educational needs provision in section F and the named placement.
9. Under a national trial running up to August 2021 they may also appeal about the health and social care provision, where they are also appealing about the education provision. Any recommendations the Tribunal makes about health and social care provision in sections H1 and H2 are not binding on the council or health authorities. But Government guidance ‘SEND Tribunal: single route of redress national trial’ says although there is no requirement to follow these recommendations, the council and/or responsible health commissioning body is generally expected to do so.
10. The local authority must write to the parents or the young person within five weeks of the recommendation:
• to say whether it accepts the recommendations and what it will do to implement them, or
• explaining why it does not accept them.
11. Parents and young people may complain to the Ombudsman about a council’s failure to agree to implement a Tribunal recommendation on social care provision or, where it has agreed to a recommendation, a failure to deliver on the recommendation.
12. Local authorities have a duty to ensure the special educational provision set out in section F of an EHC Plan and the education placement named in section I is arranged. (Children and Families Act 2014 section 42)
13. There is no absolute duty on the council to provide health provision or social care provision in the Plan under SEN law. But where a council is satisfied it is necessary to provide a support service under section 2 of the CSDPA, it has a duty to make arrangements to provide that service.

Children’s social care

14. Local authorities have a duty to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child’s needs. (Children Act 1989, section 17)
15. Local authorities undertake assessments of the needs of the child to determine which services to provide and what action to take. Any support a council decides is needed under section 17 is set out in a Child in Need Plan. The council must include an assessment of the needs of a parent carer if the parent asks for one.
16. Councils also have duties in relation to assessing the needs of young people who are likely to need social care support after the age of 18 and will be transitioning to Adult Social Care services.

What happened

17. Mrs X’s daughter, Y, turned 18 in January 2019. Y has special educational needs, communication and sensory difficulties and experiences high levels of anxiety. Y has had an EHC Plan for several years.
18. In November 2017, following a request from Mrs X, the Council carried out a children’s social care assessment which it completed in February 2018. It drew up a Child in Need Plan. The assessment identified that Mrs X and Y needed help to:
• reduce the family's isolation and increase their support network
• support Y's emotional wellbeing and high levels of anxiety
• reduce Y’s her dependence on her mother and increase her independence skills
• support Mrs X with own health conditions through a carer’s assessment.
19. It recommended action to be taken by ‘relevant professional agencies’ to provide the support, including Y’s college, mental health services and Adult Social Care. It concluded that if the family did not receive the support they needed it was likely Y would be at risk of harm and would need further assessment and services to be provided. The Council decided to close the case to Children’s Social Care.
20. My understanding is that a referral was made to Adult Social Care for a transition assessment for Y and a carer’s assessment for Mrs X. In April 2018 the Council informed Mrs X that Y was not eligible for the transitions service as her needs were not severe enough to meet the threshold. But it said when Y turned 18 she could ask for a referral to Adult Social Care for an assessment of her care needs. Adult Social Care also referred the carer’s assessment for Mrs X back to Children’s Services to carry out as a parent carer’s assessment.
21. Children’s Services updated its assessment in June 2018, coming to similar conclusions as the assessment completed in February. In other words there was a need for support for the same reasons given previously as set out in the Child in Need Plan. The decision was to close the case to Children’s Services while referring the actions to be taken in the Child in Need Plan to ‘relevant professionals’ and the Emotional Wellbeing Team to provide support. Again the Plan said if the family did not receive the required support there was a risk of harm to Y.
22. In the meantime, in April 2018, the Council issued an amended final EHC Plan for Y. Mrs X appealed to the SEND Tribunal about the description of Y’s social care needs and the special education provision in her EHC Plan. Mrs X asked the Tribunal to make recommendations about social care provision. The Council’s proposal was to provide access for Y to a Youth Work Mentor for 48 hours over 12 weeks, and then review the service.
23. The Tribunal hearing took place on 8 November 2018. The Tribunal agreed with the Council’s proposal. It made recommendations for the Council to include the following provision in section H1 of Y’s EHC Plan:

“In respect of [Y’s] isolation and dependence upon her mother, she will be offered 12 sessions with a Youth Work Mentor, employed by ESCC for up to 4 hours per week with the aim of developing her confidence in accessing clubs and activities in the community. £30 will be made available by the LA social care services for the use in connection with expenses.”

“Following the initial 12 sessions, the input will be reviewed to consider whether they are having the desired impact.”

24. I do not know the date when the Tribunal issued its Order and recommendations. The Council issued an amended final EHC Plan on 20 December 2018.
25. The Council wrote to Mrs X on 3 January 2019 confirming it agreed with the recommendation and would offer a package of mentoring support for 12 sessions of up to four hours a week, making a total of 48 hours. The letter said a social worker would contact Mrs X to arrange for a meeting with her, Y and a suitable youth worker matched to work with Y. It said it may take between eight and 12 weeks to arrange. As I do not know the date of the Tribunal Order I cannot say at this stage whether the Council sent this notice to Mrs X within the five-week timeframe required.
26. Mrs X contacted the Council about what kind of qualifications and experience the mentors would have. The Council looked into potential mentors and identified three possibilities.
27. Mrs X made a formal complaint to the Council on 11 March 2019 alleging failure to arrange the support from a mentor agreed at the Tribunal.
28. The Council replied at the end of March 2019 apologising for the delay. It said none of the three mentors it had identified as suitable were available immediately. However it said it had now identified one, Ms B, who would offer the sessions to Y. It said a social worker would contact her to make the arrangements. The letter also confirmed the Council’s commitment to provide mentoring support for Y and to review this regularly “with an option that it will continue over a maximum period of one year” if it was proving effective.
29. From early April Ms B tried to arrange a home visit to see Y. A visit did not take place until June 2019 because at first Mrs X said Y was too anxious and upset at the prospect of meeting someone new. Then there were difficulties finding a mutually convenient time and some problems with mobile phone communications.
30. Three home visits took place in June 2019 to discuss the kind of support the mentor could offer and activities Y might be interested in. Ms B took Y out to activities three times in June and August.
31. Following problems in contacting Ms B, Mrs X made a further complaint to the Council about the service at the end of August 2019. She said the Council was not providing the mentoring service as agreed. Y had been taken out twice only. The first time was five weeks previously when the expected person did not turn up. The second was two weeks ago and she had heard no more since, as Ms B did not return her messages. She asked for a different mentor as she said the existing one did not appear to be reliable, and this caused her daughter emotional difficulties. As an alternative she asked for a personal budget so she could hire a mentor herself. She also referred to past problems with Y’s transition assessment.
32. The Council responded in mid-October 2019. It said Ms B and the social worker thought four hours a weeks would be hard for Y to manage. It explained that Y would still get the full 48 hours of support, but over a longer period of time. The Council referred to some disagreements with Mrs X about the use of the mentor’s time. It also accepted there had been problems with contact with Ms B but said she was keen to continue to work with Y. The Council said it would improve communications with her and asked if she was happy to continue with the arrangement.
33. In November Mrs X replied to the Council saying she wanted a new mentor as she felt Ms B had let her daughter down and, combined with other issues, such as being out of school, this was damaging Y’s mental health.
34. There was then an exchange of emails between Mrs X and the Council’s Early Help Service which was arranging the mentoring service. The Council said it would be in a position to confirm a new mentor by 6 December and there was a discussion about the arrangements. In one email the Council said some of the four hours was to include time for the mentor to follow up issues or find out information about Y. Mrs X objected to this, saying this was not what was agreed at the Tribunal or in the EHC Plan. The Council then agreed it would not use the time as previously stated and confirmed it would provide the 48 hours mentoring support.
35. In an email on 29 November the Council said “the support we can offer will be delivered between now and 31 March 2020 when the funding will cease.” Mrs X’s reply was that the funding could not cease until the Council had reviewed the service as set out in the EHC Plan. She said it was not time-limited and asked the Council to confirm this was the case.
36. There were some difficulties in finding a mutually convenient time to meet the new mentor. Then on 6 December the Early Help Service sent an email to Mrs X offering to arrange a meeting between Y and a new Youth Worker before Christmas to plan for the new year. It also confirmed the Early Help Service had been commissioned to deliver 12 sessions of up to four hours, and had agreed to deliver the 48 hours of work “before the end of March 2020”. It said if Mrs X wanted to ask for more support after this date she would need to contact ‘Social Care’ directly as “we need to deliver this work before the end of March 2020”.
37. The same day Mrs X made a further complaint to the Council. She said the mentoring service was still not in place and it should not be for her to negotiate between different departments of the Council. She said she would now take legal action or complain to the Ombudsman.
38. The Council replied on 23 December. It said it recognised there had been challenges in making the provision. It apologised that for various reasons, not all of which were in the Council’s control, it had not been able to deliver 12 sessions and carry out a review. It said it had spoken to the service team and did not think there was anything that could be done to make up for the sessions missed. This was because it was “unlikely to be in [Y’s] best interests to intensify the number of hours or number of sessions to make up for lost time.” The Council concluded that it was “not possible” to make up for the sessions lost. It said this was its final response and Mrs X was dissatisfied she could contact the Ombudsman.
39. Then on 24 January 2020 the Early Help Service wrote to Mrs X offering the new mentor. Mrs X replied in early February saying if the Council was going to start the new mentor now only to stop it in March, she did not want it. This was because Y would find it very upsetting getting attached to someone and then having the person withdrawn.
40. The Early Help Service replied saying it understood Mrs X did not want short-term provision as she felt it would not help Y in the long term “but this is what we were commissioned to provide”. It said it would not offer the service if Mrs X did not want it. Mrs X replied saying she understood the problem was with the Council.
41. Y had a care needs assessment from Adult Social Care who offered six hours a week support from a personal assistant to help Y with her independence skills and taking her out into the community. Difficulties in accessing community activities during the COVID-19 pandemic and Y‘s anxieties around this have meant she has not yet managed to take up the support service offered.

Council’s response

42. In response to our enquiries the Council said it had explained to Mrs X that the offer of mentoring was not open-ended and was meant to last for a maximum of a year. It accepted there were delays at first in setting up the support while the Council identified a suitable mentor. Then there was some delay in setting up the first meeting with the mentor because Mrs X cancelled meetings. It felt it should have been possible to provide the full 48 hours by March 2020. However it said if it had been asked to provide the service beyond March 2020 or decided it was in Y’s best interests, it would have reviewed the provision. Then if the review concluded it was appropriate, it could have continued it.
43. The Council also said the provision should have been offered to Y before she turned 18 in January 2019. This did not happen because of the delays already outlined. To put matters right it said it arranged for the Early Help Service to provide the mentoring service after she was 18 “as she was still entitled to the provision set out in her EHCP”.
44. The Council’s position, as confirmed by the Head of Service I spoke to, was that the Council had made efforts to offer the service but Mrs X had declined it.

Analysis – was there fault by the Council causing injustice?

45. The Council was not obliged to follow the Tribunal recommendation as it was for social care provision. However it agreed to do so and wrote the provision into section H1 of the EHC Plan. So it had a duty to provide the service under the CSDPA.
46. The Council has accepted that because of the delays in offering the service which meant it could not start before Y turned 18, it should provide it beyond the age of 18 as Y was entitled to the support under her EHC Plan.
47. Y had only three sessions out of the 12 she should have received. The Council says this was because while it was willing to provide the service, Mrs X refused the offer of a new mentor. From the information I have seen my view is that the matter was not so straightforward. The Council told Mrs X repeatedly in writing that it would not provide the mentoring service beyond March 2020 because the funding would cease at that point. It would not confirm, when she asked, that it would not end the support without first reviewing it after 12 sessions, as set out in the EHC Plan.
48. Before the Council offered the new mentor in late January 2020 it had written to her on 23 December 2019 telling her it would not be possible to make up for any sessions lost. It said this despite apologising for the lack of provision.
49. Mrs X was concerned, because of her daughter’s personal history and fragile mental health, about her getting attached to a new person late in the day, only to have them withdrawn. Although the Council told her several times it was committed to providing 48 hours of mentoring, she received no assurances that it would be able to continue beyond March 2020. Mrs X did not think there would be time to fit in the rest of the 48 hours by the end of March. She had been told clearly that there was no way her daughter could receive any support beyond this to make up for the shortfall.
50. This informed Mrs X’s decision to reject the offer in February 2020. Her view was also coloured by the history of her dealings with the Council over its decision not to carry out a transition assessment for Y. Although that issue is not part of this complaint, it created a lack of trust in the Council. In my view, given what the Council had told her about ceasing the provision at the end of March 2020, it was understandable she declined it in February.
51. I consider that the Council was at fault in the way it communicated with Mrs X. It had a duty to provide the agreed service. There were delays in providing it, not all of which were of the Council’s making, and there were problems in sustaining it. But it has confirmed it should have provided it beyond the age of 18. The Council should have made it clear to Mrs X that Y would not lose her right to the agreed support. Had it done so I consider it unlikely Mrs X would have rejected the offer in February 2020.
52. The Council clearly agrees that Y continues to need support, as it has offered her a support plan following her adult care needs assessment. There is therefore no need for the review that was built into the EHC Plan. In my view the Council should look at how it can make up for the lost sessions in a way that can benefit Y. Y is now an adult and should be involved in the decision-making.

Agreed action

53. The Council agreed that within one month of the final decision on this complaint it will take the following action.
• Apologise to Mrs X for the mixed messages it gave her about the support it could provide to Y.
• Consider ways of making up for the missing mentoring sessions, taking account of Y’s wishes. The Council has now done so. It offered to transfer the missing 40 hours from Children’s to Adult Services and provide the service to Y free of charge. But after Mrs X explained the difficulty Y is having in using her existing hours of support given her other commitments and with the COVID-19 restrictions in place, the Council agreed to make a financial payment instead. It will pay Y £414. 80, equivalent to the cost of the 40 sessions missed. The payment is to be used for the benefit of Y’s education or welfare.

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Final decision

54. I find that the Council was at fault in the way it dealt with Mrs X over the support offered to Y under section H1 of her EHC Plan. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman