Summary: Mrs X complained about how the Council provided for her son, Mr Y’s, special educational needs. There was fault in how the Council included details of direct payments in Mr Y’s Education Health and Care plans, how it took too long to amend the plan after a review and communicated with her poorly. This caused Mrs X and Mr Y avoidable uncertainty and distress. It also raised Mrs X’s expectations about what direct payments the Council would make. The Council agreed to apologise, pay a financial remedy and improve its practices.

The complaint

1. Mrs X complains, on behalf of her son, Mr Y, about how the Council provided support for his special educational needs since September 2019. She says the Council:
• stopped paying the direct payments for social care support set out in Mr Y’s Education Health and Care (EHC) plan from July 2019;
• failed to arrange a social care assessment for Mr Y following a tribunal appeal in November 2020;
• took too long to amend Mr Y’s EHC plan following an annual review in January 2021;
• completed inadequate social care assessments for Mr Y in March 2021 and February 2022; and
• wrongly decided to remove direct payments for social care from his Education Health and Care plan in August 2021.
• Mrs X also says the Council failed to properly respond to her complaint or take her communications needs into account.
2. As a result, Mrs X says she had to pay for some of Mr Y’s support herself and that both she and Mr Y were caused avoidable uncertainty and distress. She wants the Council to apologise, properly recognise the effects on her and Mr Y, pay the outstanding direct payments and improve its practices.

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What I have and have not investigated

3. I have investigated how the Council made its decisions about the support Mr Y needed between July 2019 and January 2020, and between December 2020 and December 2022 when we decided to investigate Mrs X’s complaint.
4. I have not investigated the period between February and November 2020 because Mrs X appealed to the SEND Tribunal about the content of Mr Y’s EHC plan during this time. I cannot consider complaints about things which someone has appealed to a tribunal.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. 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)
9. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
11. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
12. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
13. 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

14. I considered:
• the information Miss X and Mr Y’s advocate provided;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
15. Miss X, Mr Y and the Council had an opportunity to comment on my draft decision. I considered any comments I received before making a final decision.
16. 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

Support for disabled children

17. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
18. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in section 2.
19. Services which can be provided under section 2 CSDPA include:

• practical assistance in the home including home based short breaks / respite care;
• recreational / educational facilities including community based short breaks; and
• travel and other assistance.

20. The expectation of ‘Working Together’ is that an assessment which identifies significant needs will generally lead to the provision of services, but it is not the case that there is a duty to meet every assessed need. Whether a service is required is dependent on the nature and extent of the need assessed and the consequences of not providing a service. Councils may use eligibility criteria and take into account their available resources when providing services under section 17 of the Children Act.
21. If a council is satisfied it is ‘necessary’ to provide support services under section 2 of the CSDPA then services must be provided regardless of the council’s resources.

Transition from children to adult services

22. When a child reaches 18 years of age, they are legally an adult and responsibility for meeting their social care 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.
23. 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 (age 13 to 14). 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.
24. The assessment must identify all the young person’s needs for care and support and identify the outcomes the young person wishes to achieve. The assessment should also consider whether any carer is able to continue in their caring role after the young person turns 18.

Education health and care plans

25. 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.
26. 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.
27. Where a council decides it is necessary for support under section 2 of the Chronically Sick and Disabled Persons Act 1970 to be provided it must include this in Section H1 of the EHC plan. Support provided by Early Help or under section 17 of the Children Act should be included in Section H2 of the EHC plan.
28. 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).
29. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
30. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
31. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
32. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)

Equalities

33. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
34. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
35. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
36. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010;
• advance equality of opportunity between people who share a protected characteristic and those who do not; and
• foster good relations between people who share a protected characteristic and those who do not.
37. The broad purpose of the Public Sector Equality Duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

Background

38. Mrs X’s son, Mr Y, had special educational needs (SEN) related to his deafness. He previously attended a specialist school/college.
39. Before mid-2019, Mrs X received a direct payment from the Council to provide a communication support worker for Mr Y. These direct payments were included in Mr Y’s Education Health and Care (EHC) plan from 2018.
40. Since the events in this complaint, Mr Y has turned 18, left education and declined further social care support from the Council.

My findings

41. The Ombudsman cannot usually investigate complaints about things which happened more than 12 months before someone complains to us. Mrs X complained to the Ombudsman in March 2022, so her complaint about events before March 2021 is late. We can investigate late complaints if we decide there are good reasons to do so. In this case, I am satisfied there were delays in how the Council responded to Mrs X’s complaint and also in Mrs X receiving the support she needed from an advocacy organisation to bring her complaint. I am satisfied these are good reasons to consider all of Mrs X’s complaint.

Direct payments in 2019

42. In early July 2019, the Council held a review of the social care support Mr Y needed, including the direct payment it had been making.
43. In the Council’s review the social worker noted that:
• Mr Y required a communication support worker to access his learning and he found English particularly difficult;
• he required an interpreter to support his understanding;
• Mr Y was beginning to develop some coping strategies to enable him communicate with others; and
• Mr Y continued to need an interpreter to build on those skills.
44. At the time of the review, Mr Y was waiting to find out from the Council where it planned to arrange for him to attend college. The social worker noted that Mr Y’s preferred college would help him with his driving theory practice, work experience and other life skills. According to the Council’s notes from the meeting, Mrs X accepted that Mr Y’s preferred school would be able to meet those needs which were being met through the direct payment.
45. The Council decided that, if Mr Y continued to attend his preferred school, the school would be able to meet Mr Y’s communication needs and he would no longer need a direct payment. It said it would stop Mr Y’s direct payments from September 2019 if he continued to attend his preferred school from then.
46. It is not our role to decide if Mr Y needed a direct payment; that was the Council’s responsibility. Our role is to assess whether the Council made its decision properly. We cannot question a decision the Council has made, or the professional judgement of its decision makers, if it followed the right steps and considered relevant evidence.
47. I am satisfied there was no fault with how the Council made its July 2019 decision. The Council considered Mr Y views, those of his parents and the school (who also attended the meeting). The Council clearly identified Mr Y had various needs around communication. It also considered how those needs could be met, including through Mr Y’s preferred school. The Council clearly decided that Mr Y’s needs could be met by his preferred school if he attended there from September 2019 and therefore it would no longer necessary for the Council to continue to meet those needs.
48. I appreciate Mrs X disagrees with the Council’s view that Mr Y’s school could meet the needs. However, since there was no fault in how the Council made its decision, I cannot question the professional judgment of the Council’s social workers.
49. Shortly after the Council carried out the July 2019 social care review, the Council issued an amended Education Health and Care plan. This named Mr Y’s preferred school as his current placement (for 2019) and proposed a change to an (unnamed) mainstream college from September 2020. This plan noted the Council was paying the previously agreed direct payment for communication support. The social care advice the Council referred to in the plan was from 2018, not the most recent review in July 2019.
50. While EHC plans must include any social care support a child or young person receives, the Council’s duty to ‘secure’ the support in an EHC plan applies only to the educational provision. The duty to arrange any social care support it considers necessary is covered by the Chronically Sick and Disabled Persons Act 1970.
51. As explained above, I am satisfied the Council decided it no longer needed to meet Mr Y’s social care needs from September 2019 and that it made that decision without fault. On the balance of probabilities, I am satisfied the Council included the direct payments in Mr Y’s 2019 EHC plan in error. This was likely because the Council used out-of-date social care advice when preparing Mr Y’s EHC plan.
52. Although the social care review happened only a few weeks before the Council issued the amended EHC plan, the Council’s social care team should have shared this with its SEN team. Its failure to do this and the Council’s failure to update the plan based on that advice was fault. This led to confusion about what support Mr Y would receive when the Council issued the plan.
53. The Council wrote to Mrs X in August 2019 to confirm the direct payments would stopping. Mrs X replied to the Council saying that she did not agree with the decision to end the direct payments and she did not understand the Council’s reasons for doing so. There is no evidence the Council responded to Mrs X at the time or that Mrs X pursued this further until February 2020, after the next annual review of Mr Y’s EHC plan.

2020 tribunal appeal

54. Mr Y’s school held an annual review of Mr Y’s EHC plan in October 2019. It suggested several changes to Mr Y’s EHC plan, including confirming his educational placement from September 2020.
55. In February 2020 the Council told Mr Y it did not intend to make any changes to his EHC plan as a result of the review. Mrs X appealed that decision to the SEND tribunal.
56. Mrs X used her right to appeal the content of Mr Y’s EHC plan and included, as part of her appeal, the social care support Mr Y needed. Therefore, I cannot investigate any lost support Mrs X claims there was during the period of the appeal. As explained above, I am satisfied the Council had decided, in July 2019, that it did not need to meet Mr Y’s social care needs as these could be met through his school. This was the Council’s decision during the appeal period.
57. Between February and November 2020, the Council worked with Mrs X’s advocate to decide what support should be included in Mr Y's EHC plan. While I cannot investigate how the Council caried out that process, I have noted there were six versions of a ‘working document’ describing the proposed content of Mr Y’s plan exchanged between Mrs X’s advocate and the Council. In the final version of that working document, the description of Mr Y’s social care needs had been updated and, again, included 4 hours a week of direct payments to support Mr Y’s communication needs.
58. The SEND tribunal decided in November 2020, with the consent of Mrs X and the Council, that Mr Y’s plan should be amended in line with the final working document. The Council issued an amended EHC plan, including 4 hours a week direct payment for communication support, in mid-November 2020.
59. However, the Council did not restart the direct payments because the view of its social workers was that Mr Y did not need that support, even though it had included this in Mr Y’s amended EHC plan.
60. Although I cannot investigate how the Council amended the EHC plan during the tribunal proceedings, it did issue an agreed, amened EHC plan in November 2020 which included 4 hours a week direct payment for Mr Y’s communication needs. Even if the Council’s social work team did not agree that Mr Y needed that support, agreeing to include that support in Mr Y’s EHC plan reasonably led Mrs X to believe the Council had agreed to restart Mr Y’s direct payments. Whether or not the Council had a legal duty to provide that support, I am satisfied Mrs X reasonably expected the Council to provide it.
61. Mrs X said she was not happy with some of the support Mr Y’s school provided for helping him learn to drive so she arranged, and paid for, some of that support herself. The Council refused to reimburse Mrs X for those costs she incurred after it issued the November 2020 EHC plan and before it amended the plan again in August 2021. That refusal was fault.

Delays in social care assessment following the tribunal

62. The Council also agreed, during the tribunal, to review Mr Y’s social care needs, in preparation for his transfer to adult social within three months of the tribunal decision. It included this commitment in the November 2020 EHC plan.
63. The Council accepted there were delays in how it arranged that assessment and said these were mainly due to this assessment being planned during the COVID-19 pandemic and the Council suspending face-to-face visits. However, there is no evidence the Council considered other methods of arranging the assessment, including a virtual meeting with a sign language interpreter. That was fault. Had the Council done so, I am satisfied it is likely the review would have taken place sooner than it did.
64. Ultimately, Mr Y declined any adult social care support from the Council. Therefore, I am satisfied the delay did not cause him to miss out on any support. However, the delay did cause avoidable frustration for Mrs X as she had to chase the Council to arrange the review.

2021 annual review

65. Mr Y’s college carried out the next annual review of Mr Y’s EHC plan in January 2021. The report from Mr Y’s college did not mention that Mr Y needed any extra help with his communication needs but did say that Mr Y was making good progress with both his education and life skills.
66. The Council wrote to Mrs X in April 2021 saying it intended to amend Mr Y’s EHC plan. The Council proposed some small changes to the special educational provision and to remove the 4 hours a week direct payment. The Council issued an amended EHC plan, based on its proposed changes in August 2021.
67. The Council should have sent Mrs X an amendment notice within two weeks of the review meeting and should have issued an amended EHC plan for Mr Y within eight weeks of sending Mrs X its proposed amendments. However, in both cases the Council took nearly two months longer than it should have done. Combined, these led to a significant delay in confirming Mr Y’s educational placement for September 2021. While Mr Y did continue to attend his preferred college placement from September, I am satisfied the delays caused Mrs X and Mr Y avoidable uncertainty and worry.
68. Mrs X did not appeal the content of August 2021 EHC plan because she did not disagree with any of the changes to the educational provision. She only disagreed with the removal of Mr Y’s direct payments and it is not possible to appeal only social or health care issues to the SEND tribunal. Therefore, I can investigate how the Council made the decision to remove Mr Y’s direct payments from EHC plan in August 2021.
69. In August 2021, Mr Y had already reached the age of 18 and any social care support would have been arranged through adult social care. As I have noted above, Mr Y declined any social care support as an adult. Therefore, even if there was fault with how the Council decided to remove the direct payments from Mr Y’s EHC plan in August 2021, I do not think this caused him an injustice.

2022 social care review

70. Mrs X says a review the Council carried out in February 2022 about Mr X’s social care needs as an adult did not properly consider all his needs.
71. The evidence I have seen of that review shows that it focused very narrowly on Mr Y’s wishes for employment and did not cover all the needs he might have had. However, since Mr Y ultimately declined social care support as an adult, I do not think any failure to consider his wider needs cause him an injustice.
72. Mr X left college in late 2022, aiming to move into paid employment. The Council ended his EHC plan in August 2022 after Mr Y did not object to the Council doing this.

Complaint handling and communication

73. Mrs X’s advocate first complained to the Council in May 2021 about some of the issues I have investigated.
74. In its final response, the Council accepted it first allocated Mrs X’s complaint to the wrong team within the Council, and this team did not properly respond or notice that the complaint was not for them.
75. There were then, in my view, further avoidable delays in the Council responding to Mrs X’s complaint, despite Mrs X’s advocate chasing the Council. The Council issued its first, formal response to the complaint in late July 2021. After Mrs X’s advocate asked the Council to review its response, the Council responded within four weeks.
76. Throughout the period I have investigated there is evidence of poor communication from the Council. It failed to respond to some of Mrs X’s emails and its handling of Mrs X’s formal complaint, via her advocate, was disjointed and confused. I appreciate Mrs X’s complaint was complex and involved several Council services. However, this is not unusual for young people with EHC plans transitioning to adulthood. This was fault which caused Mrs X avoidable confusion, frustration, time and trouble.

Equalities

77. I have also considered whether the Council properly considered its duties under the Equality Act 2010, including the public sector equality duty.
78. There is evidence the Council did make some arrangements to meet Mrs X and Mr Y’s communication needs, including arranging interpreters to attend meetings with them. However, it failed to properly consider their communication needs between late 2020 and early 2021. Although this was during the early COVID-19 disruption, the Council still had a duty to consider Mrs X and Mr Y’s needs as disabled people. I consider the failure to do this added to the injustice they suffered.

Summary

79. I find the Council was at fault for:
• including direct payments in Mr Y’s July 2019 EHC plan even thought it had decided a few weeks earlier that these were no longer necessary;
• not reimbursing Mrs X the costs she incurred after it led her to believe it had agreed to restart the direct payments in November 2020;
• failing to consider other ways of carrying out a review of Mr Y’s social care needs after the tribunal decision in November 2020;
• taking too long to issue an amended EHC plan after the annual review in 2021;
• taking too long to respond to her complaints; and
• communicating with her poorly.
80. These faults caused:
• Mrs X to incur costs she expected the Council to pay; and
• avoidable frustration, uncertainty, time and trouble for Mrs X and Mr Y.

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Agreed action

81. Within one month of my final decision the Council should:
• apologise, separately, to Mrs X and Mr Y for the injustice caused to them by the faults I have found above;
• pay Mrs X £925 to reimburse her for the costs she paid between November 2020 and August 2021;
• pay Mrs X £400 to recognise the avoidable frustration, uncertainty and confusion it caused;
• pay Mrs X £200 to recognise the time and trouble caused by the delays responding to her complaint; and
• pay Mr Y £350 to recognise the avoidable uncertainty and worry it caused.
82. Within three months of my final decision the Council should:
• review the arrangements for communication between its special educational needs and children with disabilities teams to ensure it has a joined-up, cooperative approach to assessing the needs of children with EHC plans;
• review its procedures for investigating complaints which involve several Council services to ensure it takes a coordinated approach to such complaints; and
• review the training needs of its education and social care teams about the communication needs of Deaf people. If the review identifies is a need for further training, it should arrange this within a further three months.
83. The Council should provide us with evidence it has complied with the above actions.

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Final decision

84. I have completed my investigation. There was fault in how the Council included details of direct payments in Mr Y’s Education Health and Care plans, it took too long to amend the plan after a review and communicated with her poorly. This caused Mrs X and Mr Y avoidable uncertainty and distress. It also raised Mrs X’s expectations about what direct payments the Council would make. The Council agreed to apologise, pay a financial remedy and improve its practices.

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Investigator's decision on behalf of the Ombudsman