Summary: There was no fault in how the Council handled most of K’s education health and care plan (EHC plan), his social care needs, or in its actions to keep him safe. However, the Council did take too long to complete a review of K’s EHC plan when he transferred to college. It properly considered what information to share with K’s father, but did not properly engage with its duties under the Equalities Act in its contact with him. I have recommended the Council take action to put matters right.

The complaint

1. Mr X complains on behalf of his son K. He says the Council:
• Failed to issue an EHC plan on time and failed to provide the social care support agreed at appeal.
• Took too long to complete a transitional review of K’s EHC plan, it was rushed, the educational provision was unsuitable and as a result, there has been no educational provision since October 2021.
• Failed to ensure there is a moving on/ transitional plan as K approaches his 18th birthday.
• Frequently changed his social worker (SW), failed to safeguard him from drug and gang activity, and did not attend an adult safeguarding meeting or carry out the actions agreed by that process.
• Failed to ensure that K’s housing was secure so that another person was allowed access and stole money from his room.
2. Mr X also complains that the Council:
• Did not tell him that his son had been moved and would not give him his son’s address.
• Would not communicate with him at all despite him sending his son’s written consent, and did not tell him of changes to his social worker.
• Failed to take account of his disability or make any reasonable adjustments under the Equality Act.
• Has failed to support him and his son in their relationship
3. Mr X says that as a result of the Council’s shortcomings, his son has been exposed to risk and has not been able to access educational provision. Mr X has been distressed and frustrated in his dealings with the Council.

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What I have and have not investigated

4. I have not investigated the Council’s actions prior to the tribunal order in September 2020. The tribunal dealt with the contents of the delayed EHC plan, and we have investigated Mr X’s complaint about delay in 2019 and 2020 as part of an earlier complaint.
5. I have not investigated whether fault by the Council led to the theft from K’s room. 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. My understanding is that Mr X has started court action against the Council and as such I cannot investigate this part of his complaint.

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The Ombudsman’s role and powers

6. 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)
7. 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

8. I considered the information provided by Mr X and discussed the issues with him. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered all

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What I found

The law and guidance

9. 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.
10. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

What happened

Background

11. At the time of these events K was 16 and 17 years old. He had been attending school part time and had an EHC plan. I have set out some of the key events. This is not a detailed account of everything that happened.

Failed to issue an EHC plan on time and failed to provide the social care support agreed at appeal

12. In September 2020, the tribunal made an order that the Council issue an EHC plan for K with non-binding recommendations that this include:
• A male support worker to engage with K in appropriate behaviours for six hours weekly; and
• Foster care for K during Mr X’s upcoming surgery.
13. The Council issued the draft plan without delay. It initially did not agree with the recommendation for a support worker, and instead completed its own assessment as to how best to support Mr X and K. It focussed on parenting support with mentors to help K reintegrate with full time school. However, the Council then agreed that it would provide a support worker in line with the tribunal’s recommendations.
14. The Council has explained the specification for the support worker was detailed and it took until December to find someone suitable. The worker visited K at home in December, but K would not engage with him. The Council left the provision open to K for him to take up at a later date. Mr X says the support worker was recruited via the Council’s disabled children team and was not suitable to meet K’s needs.
15. The Council took from October to December to identify suitable 1:1 social support, but it has explained that there was a detailed specification. It is open to K to decide he did not want to meet the worker. The review documents suggest that there was other support and mentoring for K and that he could have later returned to the 1:1 social support. The Council did not fail to provide the social support agreed and ensured that K had input that might encourage him to take this up in the future.
16. With regard to the foster care to allow Mr X to recover from surgery, the Council’s file documents show that it discussed this with K. He decided that he did not want to stay away in a placement while his dad was in hospital. The Council’s case notes suggest that Mr X and K agreed with the Council that K could stay with Mr X’s partner during his surgery. Mr X says the arrangement did not work out and he had to discharge himself early from the hospital to look after K. However, I cannot see in the Council’s case notes that it was aware this had happened.
17. Overall, I have not investigated the Council’s actions before the Tribunal. There was no delay in issuing the draft EHC plan following the tribunal. It was not fault for the Council to complete an assessment before deciding that it would follow the tribunal’s recommendations for 1:1 support and for foster care while Mr X had surgery. It did not fail to provide these even if they were not fully utilised.

Took too long to complete a transitional review of K’s EHC plan, it was rushed, the educational provision was unsuitable and as a result, there has been no educational provision since October 2021

18. Mr X says the Council delayed and so the transition planning for K’s post-16 education was rushed and was unsuitable. K’s school started the review in March 2021 and held two review meetings. This was too late as the deadline to name the post-16 educational provision was the end of March. However, the Council was able to send a draft EHC plan at the beginning of April.
19. The Council’s file shows that it consulted with three colleges. The Council also consulted its social care department on how it could meet the provision in the draft plan.
20. Mr X sent the Council a formal warning of court proceedings on the basis that it had failed to issue the final plan before the end of March. The Council acknowledged that there had been a delay to starting the review, but said it was now progressing to a final plan. In April, it issued a final plan but without naming a college. Mr X appealed to the tribunal on this basis, that he had not seen the reports used for the new EHC plan, and that the Council had not put in place the social support and foster care agreed in October 2020.
21. In May, one of the colleges agreed that it could meet K’s needs. The Council amended the plan and on 2 June it issued a new final EHC plan. This plan also updated the care provision and kept K’s alternative (out of school) provision in place to aid the transition to post-16 education.
22. Mr X appealed to the Tribunal about the contents of the new final EHC plan. He said the plan should include the social support originally agreed, a new educational psychologist’s assessment, specific support of one hour a day, college transport, and specific objectives for the year. Mr X also complained to the Council.
23. K started at the college in September, but from the start, the college reported that he was not attending regularly. After several meetings with K and his advocate, the college withdrew K from the course. The Council consulted other colleges, it referred him to four alternative providers for education outside of a school setting, five local colleges, four independent colleges, and three training providers.
24. In December, following further discussions with K the Council also proposed to him a sports education program, followed by a vocational qualification and a 1:1 supported apprenticeship. Unfortunately by this time K did not want to take up any of these options. In February 2022, the Tribunal struck out Mr X’s appeal because K had not confirmed that he consented to the appeal or that he wanted it to go ahead.
25. The Council has acknowledged that it delayed in moving to a final EHC plan and did not issue this before the end of March as required. This was fault by the Council. However it named the college in time for K to start there. The contents of the plan including the educational support and the college, was subject of the appeal. As such this is outside the Ombudsman’s remit.
26. The Council was still obliged to provide an education in accordance with the plan. Although, I understand that K was having difficulty engaging with education and social care support, the files show the Council consulted various colleges and other providers, in discussion with K. It also offered him alternative provision when he was no longer able to go to college. The Council did not fail to provide educational provision from October 2021.

Failed to ensure there is a moving on/ transitional plan as K approached his 18th birthday

27. When a child reaches 18 years of age, they are legally an adult and responsibility for meeting their 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.
28. 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 like K, with an Education Health and Care plan, the process should begin earlier. 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.
29. The assessment must identify all the young person’s needs for care and support and identify the outcomes the young person wishes to achieve. From this the Council and the young person agree a pathway plan that sets out how their needs will be met.
30. The Council has confirmed that K has a pathway plan and a personal adviser. The Council’s case notes show that it had difficulty engaging K with his options for post-18. It was mindful that he was not in employment, education or training and his case was discussed at a special panel. The Council also discussed K's case with him, including at a personal education plan meetings. K did not always want support but did want a job and had worked while at college. He applied for an apprenticeship and the Council approached several education providers and helped him consider applications for specific courses.
31. However, by this time, K was no longer living with his father. His personal adviser was working with K on his independence skills alongside the staff in his current accommodation. The focus for K’s moving on plan was on finding suitable supportive housing, and this was proving difficult.
32. The Council says it continues to engage with K, but he has so far declined the options it has offered on the grounds of location or cost. It has reviewed and amended K’s pathway plan.
33. Overall, there is no fault by the Council. It was aware that K was approaching 18 and that the uncertainty of where he would be living and whether he would have a job or be in education, was impacting on him. However, it contacted numerous housing providers and considered different types of housing, including supported housing, and private rented housing with additional support brought in. The Council has kept a good level of contact with K and discussed the various options with him.

Frequently changed his social worker, failed to safeguard him from drug and gang activity, and did not attend an adult safeguarding meeting or carry out the actions agreed by that process.

34. The Council allocated an SW following the tribunal in 2020. At this time, it was known that K was using substances. It is clear from May 2021, Mr X is worried that K is dealing drugs. In June and July, Mr X also told the Council that he was very worried about online conversations his son was having, and that he may be being exploited. By this stage too, the relationship between Mr X and K had become very tense. Mr X also did not feel safe at home around his son. The Council arranged a short-term emergency housing placement for K.
35. The Council discussed K’s situation at monthly multi-agency risk conferences (called MARAC). These conferences included the Police. In August 2021, the Council noted that it suspected K was involved in some gang activity and Mr X regularly reported that K was going missing from home, and they did not know where he was. In September, there was a serious incident and Mr X told the Council he feared for his own and K’s safety and was especially worried about gang activity.
36. The Council continued to work directly with K where possible to discuss the risk to him and the tension at home increased. The Council placed K in supported housing. At the beginning of 2022, the Council became concerned that K sometimes went missing from his supported accommodation, and whether he was safe there. The Council discussed whether K should be placed in foster care, but he did not want this, and at this age, the Council would try to work with his wishes. The Council considered that K was at high risk of exploitation.
37. In February, K was evicted from the supported living. The Police took K for a mental health assessment. The Council moved K to a new placement. The staff monitored K’s movements but could not stop him from leaving the premises, and again there were concerns that K could be involved in gangs and dealing drugs. The Council continued to share information with the police who reviewed all the intelligence it had. At this stage K became a looked after child.
38. However, K became more settled in this placement. The risk of exploitation moved from high to medium. The Police reported it had no concerns about gang activity or exploitation of K.
39. I realise that Mr X was extremely worried about K’s safety, and there were some very alarming incidents. However, the Council worked closely with the Police to assess the risk and to share information of any criminal activity on which the Police could act. It then worked with K to look at ways to support him and to reduce the risk. The Council is not able to stop K from doing something, or from associating with certain people, even when he was in supported housing or in its care.
40. Throughout this time, there were safeguarding meetings around the risk to Mr X from K (and at one time, potentially others he associated with). The Council did attend the meetings, but my understanding is that K’s own SWs did not attend all the meetings. Despite this, the case notes show close contact between all professionals working with Mr X and K, and that their relationship and the safety of both were paramount.
41. The Council has confirmed that there were at various times, different teams involved with K and so this meant there were different SWs involved. This was necessary. However, since September 2022, he has been with the permanency and transition team, and has had one SW.
42. Mr X says that even within one team he had several different social workers. Changes in social workers are inevitable. The Council was aware that K would benefit from a consistent social worker, and it has now achieved this.

Did not tell him that his son had been moved and would not give him his son’s address

43. When K’s placement at the supported living accommodation broke down, he was very clear that he did not want his dad to have any details of his care or his living situation. The Council’s responsibility is to both K and Mr X and their safety and wellbeing. The case notes show that the Council’s decision not to tell Mr X of K’s new address was not just based on K’s wishes but was also informed by the conflict between them.
44. The Council also made several attempts to talk to K about his consent and whether he would change his mind on this. However, K would not engage on the topic. The Council asked K a series of questions about the different types of information and whether he thought the Council should share this with his dad. It continued to ask various workers to speak to K about this.
45. The Council also sought legal advice about how much information it should share with Mr X. On the basis of this advice, it decided that K had the capacity to withhold consent. It then went on to consider whether this was in his best interests.
46. Overall, the Council fully considered what information to share with Mr X and there was no fault by it.

Would not communicate with him at all despite him sending his son’s written consent, and did not tell him of changes to his social worker

47. The Council told Mr X that K did not want it to share information with him and also explained that it would reconsider this if his son gave written consent. This meant that when Mr X complained to the Council, it decided it could not address this without sharing information about K, and so it could not investigate his complaints about its action regarding K.
48. I appreciate that this was very distressing for Mr X. However, it is for the Council to assess whether K at his age has the capacity to make this decision. K explicitly said he did not want the Council to share information with his father. It was not fault for the Council to honour his wishes despite that Mr X still has parental responsibility.
49. Furthermore, the Council reversed its position when K gave consent and the Council had explored this with him.

Failed to take account of his disability or make any reasonable adjustments under the Equality Act

50. 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.
51. 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.
52. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.
53. The Ombudsman published a focus report ‘Equal access: getting it right for people with disabilities’. The Ombudsman considers it good practice for local authorities to ask whether they need to make changes to the way they communicate. This can help the authority meet its anticipator duty to make reasonable adjustments. Where an authority is aware of a disability it should anticipate their needs and make any necessary reasonable adjustments. It should not wait for the person to tell them the adjustments they require.
54. Mr X has a disability which means that he sometimes needs extra support and time in dealing with his affairs. In its response to me, the Council says it has no notice that Mr X needs reasonable adjustments.
55. However, it is clear that the Council knew Mr X is disabled. I note that it did offer to meet with him virtually if this helped him be a part of K’s post-18 planning. I can see from the case notes that the Council was sensitive to Mr X’s disability and how this might affect him. However, I have not seen evidence that the Council asked Mr K how it could meet his reasonable adjustments. This was fault by the Council.

Has failed to support him and his son in their relationship

56. The Council’s specialist ‘Bridges’ service aims to safely stop children going into care. The service worked with K and Mr X to try to support their relationship. The Council’s files show a high level of liaison between this service, the youth offending team, the mental health services, and social care. These professionals were aware that the relationship between Mr X and K was difficult. This was a focus of the Council’s actions in trying to make sure that both were safe. There was no fault by the Council here.

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Agreed action

57. The Council will within one month of the date of this decision:
• Apologise to Mr X that it failed to properly consider his reasonable adjustments under the Equality Act; and
• Consider the Ombudsman’s focus report ‘Equal access: getting it right for people with disabilities’, and remind staff of its anticipatory duties under the Equality Act.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have completed my investigation. There was fault by the Council causing injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman