Summary: The Council was not at fault for how long it took to reassess Mr Y’s special educational needs in 2022, or for its decision not to hold a review meeting during the reassessment. However, the Council was at fault for delays in its provision of social care support in 2023. It has now agreed to deliver the missed support to Mr Y, make symbolic payments to recognise the injustice caused, and explain how it will avoid similar delays in future.

The complaint

1. The complainant, whom I refer to as Mrs X, complains on behalf of her son, whom I refer to as Mr Y. Mr Y is now an adult but was under 18 during the period Mrs X complains about.
2. Mrs X complains that:

1. The Council delayed holding an annual review to consider Mr Y’s post-16 special educational needs (SEN) provision. This meant neither the provision nor Mr Y’s new college were decided in good time. Mrs X had to request a reassessment of Mr Y’s needs, which was then also delayed, so his provision was not decided until December 2022 (three months after he was supposed to start his new college).
2. The Council has failed to deliver Mr Y’s social care provision since it was agreed in December 2022.

3. Mrs X says these matters have caused Mr Y distress, particularly as, for a long time, he had no support to go out into the community. She also says she has gone to a significant amount of time and trouble trying to get the Council to meet its duties to Mr Y.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. Service failure can happen when a council fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by a council to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I spoke to Mrs X and considered the information she provided.
9. I also considered:
• Case records from the Council.
• The ‘Special educational needs and disability (SEND) code of practice’, which provides statutory guidance to councils on meeting children’s SEN.
• Relevant parts of The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009 (which I refer to as ‘the direct payment regulations’).
• The Council’s transition to adulthood practice guidance (which I refer to as ‘the Council’s guidance’).
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Complaint A: were there delays deciding Mr Y’s SEN provision in 2022?

The SEND code of practice

11. Parents (and others) can request that a Council assesses a child’s SEN and sets out what support they need in an education, health and care (EHC) plan. This is a document which sets out a child’s SEN and the arrangements which should be made to meet those needs.
12. EHC plans must be reviewed at least every 12 months, following the issue of a final plan. When an EHC plan has been amended, the following review must be held within 12 months of the previous review (not within 12 months of the amended EHC plan).
13. For young people moving from secondary school to a post-16 institution, the review of their EHC plan (and any amendments, including naming the post-16 institution) must be completed by 31 March in the year of the transfer.
14. A council must reassess an EHC plan if the child’s parent requests it – unless the council does not think a reassessment is necessary.
15. If a council decides to start a reassessment, it should notify the parent within 15 days of their request. It then has 14 weeks to complete the reassessment and issue the new EHC plan (although this deadline can be extended if the child’s school is closed for at least four weeks during the 14-week period).
16. Following a reassessment, the EHC plan must be reviewed within 12 months.

What happened

17. In September 2021, the Council reviewed Mr Y’s EHC plan. Neither Mrs X nor Mr Y’s school asked for any changes to the plan.
18. In February 2022 – ahead of Mr Y’s move into post-16 education later in the year – the Council began amending his EHC plan. It asked Mr Y’s school and Mrs X for comments.
19. In March, Mr Y’s school says it emailed the Council requesting amendments to the provision in his EHC plan. There no longer appears to be any evidence of this email.
20. In mid-April, the Council issued Mr Y’s final amended EHC plan, naming his new college.
21. In July, Mrs X said she was unhappy with the Council’s choice of college. She asked the Council to reassess Mr Y’s SEN.
22. The Council agreed to the reassessment around two weeks later. It said it would add four weeks to the usual 14-week timescale because Mr Y’s school was closed for the summer.
23. During the reassessment, the Council denied receiving paperwork from the school in March (which allegedly asked for amendments to the provision in Mr Y’s EHC plan). The school re-sent the paperwork.
24. The Council completed its reassessment and issued Mr Y’s new EHC plan in December.

My findings

25. The Council should have issued Mr Y’s amended EHC plan, naming his new college, by the end of March 2022. It did so in mid-April. This was not a significant delay and is unlikely to have caused Mr Y an injustice. Consequently, it would not be proportionate to make a finding of fault.
26. Mr Y’s school says that, in March 2022, it asked the Council to change the provision in Mr Y’s EHC plan. But I have not seen evidence to support the school’s claim. So I cannot say the Council was at fault for not starting its reassessment earlier.
27. When Mrs X asked for a reassessment, the Council agreed to it quickly. It then told Mrs X it would respond in 18 weeks, not the usual 14 set out in the SEND code of practice. As Mr Y’s school was closed for the summer, the Council was entitled to decide this.
28. The Council issued Mr Y’s new EHC plan exactly 18 weeks later, so there was no delay to the reassessment.
29. Although the Council should technically have reviewed Mr Y’s EHC plan in September 2022 (12 months after the previous review), its view was that its ongoing reassessment superseded the review process.
30. This appears to have been a reasonable view. The plan which would have been reviewed was, in effect, being replaced by a new plan. And as a reassessment was already underway, it is not clear what significant outcomes could have come out of a review in September 2022.
31. As a result, I have found no fault with how the Council met the timeliness and review requirements of the SEND code of practice.

Complaint B: did the Council properly deliver Mr Y’s social care provision in 2023?

The Council’s responsibilities

32. A council must provide the social care services it has assessed a child as needing. (SEND code of practice)
33. Although a council can provide direct payments to someone so they can arrange their own support services, this must be with the person’s consent. (The direct payment regulations)
34. All young people with complex disabilities (including those known to children’s social care) will have their transition to adult social care managed by the Council’s transition operational group (TOG). Such young people will be formally referred to the TOG, and to adult social care, at age 17½. (The Council’s guidance)

What happened

35. The Council issued Mr Y’s new EHC plan in early December 2022. In the plan, the Council committed to:
• Visiting him every six weeks.
• Reviewing his support plan every 12 weeks.
• Assessing his social care needs annually.
• Allocating a social worker to support him with the difficulties arising from his SEND.
36. Just before Christmas, the Council visited Mr Y. It dropped his Christmas presents off. It did not discuss his case.
37. The Council’s next visit to Mr Y was in mid-February. During the visit, it held a ‘child in need’ (CIN) meeting to agree his support plan. It committed to:
• Referring Mr Y to an outreach programme (which could deliver his support).
• Increasing Mrs X’s direct payments so she could pay for Mr Y’s support.
• Referring Mr X to its ‘Preparation for adulthood’ (PFA) panel, to agree a plan for his transition to adult social care, by April 2023.
• Referring Mr X for a speech and language assessment.
38. The Council agreed to review Mr Y’s support plan again in mid-August.
39. In March, the Council’s speech and language therapist told Mr Y’s social worker that a reassessment of his speech and language needs was not appropriate, as there was no obvious change in his needs since the last assessment. The Council decided not to proceed with the referral, and told Mrs X.
40. The Council did refer Mr Y to an outreach programme, but it refused the referral, saying his needs were too ‘specialist’.
41. In late March, the Council completed an assessment of Mr Y’s needs. It changed what it had agreed in his EHC and CIN plans, and committed to:
• Visiting him every three months.
• Reviewing his support plan every six months.
• Referring him to its PFA panel by May 2023.
• Referring him for an occupational therapy assessment, to decide his eligibility for a specialist toilet.
42. In mid-April, the occupational therapy assessment took place, and the therapist recommended a new toilet was installed. This was referred to the separate Council department which deals with disabled housing adaptations.
43. In late April, Mrs X told the Council that she had been unable to arrange support for Mr Y using his direct payments. She asked to return the direct payments. She also asked the Council to arrange Mr Y’s support services from then on.
44. The Council visited Mr Y in mid-May. Then, a week later, it referred him to a new outreach agency.
45. The Council’s PFA panel heard Mr Y’s case in early July. A social worker from adult social care had been allocated to assess him. The panel said it would meet again in September to review progress.
46. The new outreach agency began delivering support to Mr Y in late July. Mrs X told the Council, during a subsequent visit in August, that the agency had delivered two sessions but one of them was not for the required amount of time (four hours).
47. In September the Council’s PFA panel discussed Mr Y’s case again. The panel record referred to the Council’s TOG being involved in his transition to adult social care. It also said his adult social care assessment was underway.
48. In mid-September, the Council held a CIN meeting to review Mr Y’s support plan. It said it had not arranged a meeting before then because of “scheduling difficulties with parents”.
49. As Mr Y was due to turn 18 a fortnight later, the Council did not commit to anything. But it noted that the outreach agency delivering Mr Y’s support did not have enough staff to do all the hours he needed. The Council suggested that another provider may be needed as well.
50. Mrs X reports that Mr Y’s adult social care assessment was not completed by the time he turned 18.

My findings

51. Between December 2022 and March 2023, the Council had a duty to deliver the social care support set out in Mr Y’s EHC plan and his subsequent CIN plan.
52. The Council:
• Agreed Mr Y’s CIN plan 10 weeks after issuing his EHC plan.
• Reassessed his needs three weeks after his EHC plan.
• Increased Mrs X’s direct payments so she could pay for his support.
• Referred him to an outreach agency and asked it to deliver his support.
53. The Council had committed to these things and there was no fault in how it did them.
54. The Council also committed to referring Mr X for a speech and language assessment. However, after speaking to a speech and language therapist, it decided not to. This decision was supported by the therapist’s advice and was explained to Mrs X, so I will not criticise the Council for it.
55. However, the Council’s visit to Mr Y in December 2022 was solely to drop presents off, and there was no further visit for eight weeks. This means there was no meaningful visit to Mr Y for over 10 weeks after his EHC plan. This was fault by the Council.
56. The Council’s reassessment of Mr Y’s needs in March 2023 changed its views on the support he needed. Consequently, under the SEND code of practice, the Council then had a duty to deliver the support in the new assessment (not the EHC plan).
57. The Council:
• Visited Mr Y three months after its previous visit.
• Referred him for an occupational therapy assessment and then referred him for a specialist toilet.
58. The Council had committed to these things and there was no fault in how it did them.
59. However, the Council was a month late reviewing Mr Y’s support plan. It said this was because of ‘scheduling difficulties’. But there is no evidence of such difficulties.
60. This was fault by the Council. And it meant the eventual review was effectively meaningless (as Mr Y was about to turn 18). There was no time to do things that Mr Y may have needed, such as find a second support agency. An extra month could have meant the Council had time to try and resolve any problems before Mr Y’s transition to adult social care.
61. A second delay was to the Council’s PFA panel (which is linked to, or overseen by, its TOG). Mr Y’s case should have been passed to the panel by April 2023, when Mr Y was 17½, and the Council originally committed to doing this. But the case was not discussed by the panel until July – a delay of three months.
62. This was fault by the Council. And, although the delay may not have been entirely responsible for Mr Y’s lack of adult social care support on his 18th birthday, it cannot have helped.
63. A final delay was to Mr Y’s four weekly hours of social care support (after Mrs X withdrew her consent for direct payments in April 2023). The Council waited a month before referring to an agency which could deliver the support, and it was another two months before Mr Y received anything.
64. It is often the case that councils struggle to arrange social care support because of a lack of available agencies, or long waiting lists. However, the Council had a duty to provide the support it had assessed Mr Y as needing, and, through no fault of his own, Mr Y missed out on this support for three months. He has also received an inconsistent service since. This was fault by the Council.

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Agreed actions

65. Within four weeks, the Council has agreed to:
• Apologise to Mrs X and Mr Y for the delays identified in this decision statement.
• Make a payment to Mr Y of £200 to recognise his distress from the delays and from the missed support.
• Make a payment to Mrs X of £100 to recognise the time and trouble she went to while trying to get support arranged for Mr Y.
66. Within six weeks, the Council has agreed to make arrangements to deliver all the social care support Mr Y missed between April and October 2023, in addition to the support he will be receiving anyway.
67. Within two months, the Council has agreed to provide the Ombudsman with an action plan which tells us how it will ensure that similar delays are not repeated in future.
68. The Council has agreed to provide us with evidence it has done these things.

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Final decision

69. The Council was not at fault for how long it took to reconsider Mr Y’s SEN in 2022. But it was at fault for how it delivered social care support in 2023.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman