Summary: Mr X complained the Council failed to ensure a young person, Miss W, continued to receive adult social care support and special educational provision when she moved into its area. The Council was at fault failing to ensure Miss W did not experience a break in her care services. This caused Miss W undue upset and Mr X avoidable frustration. The Council will apologise to them both, pay Mr X £400 total in recognition of that injustice, and review this complaint to identify points for learning and improvement. There was no fault in how the Council secured Miss W’s special educational provision.

The complaint

1. Mr X complained on behalf of Miss W. Mr X complained the Council:

• failed to ensure Miss W continued to receive adult social care support when she moved into its area;
• did not provide the Occupational Therapy (OT) and (SALT) provision in Miss W’s Education, Health and Care plans; and
• communicated poorly with him.

2. Mr X said this had a negative impact on Miss W’s development and wellbeing and caused him frustration.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. I have investigated the period from April 2022 to December 2022. This covers the period from when the Council became aware Miss W had moved into its area to the date when the Council issued its substantive responses to Mr X’s complaints.
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 decision 23001969 with Ofsted.

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How I considered this complaint

7. I have considered:

• all the information Mr X provided and discussed the complaint with him;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.

8. Mr X and the organisation 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

Relevant law and guidance

Care and support

9. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs, how they impact on their wellbeing and the results they want to achieve.
10. Where someone has eligible needs for care and support, the council will complete a care and support plan which sets out how it proposes to meet those needs. One option is to arrange direct payments. These are monetary payments made to individuals which enable them to arrange their own care and support.

Continuity of care

11. Sections 37 and 38 of the Care Act 2014 set out the duties on councils to work together to ensure someone receiving care in one council's area can move to another council's area without experiencing an interruption in their care and support. This is called “continuity of care”.
12. The continuity of care process begins when the second council (the one being moved into) becomes aware of the person’s intention to move. If the second council believes the intention to move is genuine, then it must notify the first council it accepts the person plans to move. The first council is then required to send a copy of the person’s relevant care documents. The second council carries out a needs assessment and prepares a care and support plan (if needed).
13. This should all happen in advance of the person’s moving date. The second council should ensure any support in the care and support plan is ready to begin on the day of the move. If the second council is unable to complete the assessment and planning process before the person moves, it must make interim arrangements to meet the person’s need for care and support. These arrangements should be in place from the date of the move.

Education, Health and Care plans

14. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child or young person’s needs and what arrangements should be made to meet them. The plan is set out in sections. Section F sets out the person’s special educational needs. The council has a duty to secure the section F special educational provision (Section 42 Children and Families Act). Section G covers the person’s health needs, to be met by the relevant health organisation.
15. Regulation 15 of The Special Educational Needs and Disability Regulations 2014 sets out how councils should transfer EHC plans when a child or young person is moving from one area to another. It says that where the first council is aware of the move at least fifteen working days before it takes place, the first council must transfer the EHC plan on the day of the move. Where the first council does not have at least fifteen working days of notice, it must transfer the EHC plan within fifteen working days of the day it becomes aware of the move.
16. The second council takes over ownership of the plan and the duty to secure the special educational provision in it from the date of the transfer.

What happened

17. These sections set out the key events in this case and is not intended to be a detailed chronology.

Case 22 016 125: Adult social care

18. Mr X and Miss W previously lived in another council’s area (Council B). Miss W had a care and support plan which set out that Council B would pay her direct payments for four hours of support per week. She used it to pay someone to provide informal emotional and social support.
19. Mr X and Miss W moved into the Council’s area in early 2022. Council B notified the Council of Miss W’s move in late April, around three months later. Council B sent the Council a copy of Miss W’s needs assessment and care and support plan.
20. Council B continued to make direct payments to Miss W. It contacted the Council in late August to check if it had completed a new needs assessment and put any necessary support in place. Council B said it would end the direct payments the following week. The Council replied in early September to say it had carried out an assessment visit. It said it hoped to have the needs assessment completed the following week and have the direct payments in place ready for the week after that. This would have meant the Council expected to be making payments from mid-September.
21. The Council completed the needs assessment within the week. Council B ended Miss W’s direct payments in late September.
22. In early November, Mr X asked the Council when it would arrange the direct payments now Council B had ended its involvement with Miss W.
23. The Council replied in early December to say it did not know the funding had stopped and had it been aware, it would have prioritised Miss W’s assessment and support planning.
24. The Council sued Miss W’s care and support plan in mid-December 2022. The care and support plan noted Miss W still needed four hours of direct payments per week for informal emotional and social support. Miss W did not receive the direct payment card until early January 2023 due to postal strikes.
25. Miss W did not use the direct payment and Mr X told the Council he did not feel a direct payment was appropriate for her. The Council cancelled the direct payments, carried out a new needs assessment and continues to work with Mr X to find a suitable activity in the community for Miss W to attend instead.

Findings

Case 22 016 125: Adult social care

26. Miss W moved into the Council’s area in early 2022. However, Council B did not tell the Council about this move until late April 2022. From that point, the Council had a continuity of care duty to provide interim arrangements and meet Miss W’s care needs in the same way Council B had, until it completed a new needs assessment and care and support plan. The Council did not take over Miss W’s care and support package from Council B. This was fault.
27. The Council should have carried out the needs assessment and produced the care and support plan without delay. However, it took until September 2022 to carry out Miss W’s needs assessment. This delay was fault. The Council then took until December 2022 to issue Miss W’s care and support plan and arrange the direct payments it assessed her as needing. This delay was further fault. The delay occurred even though Council B told the Council, in late August, of its intention to stop paying Miss W direct payments the following week and despite Mr X contacting it in early November to say the direct payments had ended. The Council accepts the delay in arranging the needs assessment and direct payments was in part due to the fact it did not identify its duties towards continuity of care had been engaged. I have therefore made a recommendation to ensure such a mistake is not made again.
28. I am concerned the faults set out in paragraphs 26 and 27 indicate the communication between the Council and Council B was poor. Continuity of care relies on effective communication from both councils involved. Once the Council knew Miss W had moved into its area, it should have communicated with Council B to determine what steps each council should take to prevent Miss W from experiencing a gap in her care services. This was particularly important when Council B told the Council it planned to end Miss W’s direct payments.
29. Miss W did not receive the direct payment card until early January, which was a further delay, but this was due to postal strikes and not down to Council fault.
30. Despite the fact it was under no duty to do so, Council B continued to pay Miss W’s direct payments until late September 2022. This meant that until September 2022, the faults set out in paragraphs 26 and 27 did not cause Miss W an injustice. From late September onwards, the Council’s delay and failure to make interim arrangements meant Miss W did not have the direct payments she was entitled to for around three months. This caused her avoidable upset and caused Mr X undue frustration.
31. However, I note that once the Council arranged the direct payments, Mr X said they were no longer suitable to meet Miss W’s needs and she did not use them. Therefore, I do not consider I can safely say Miss W suffered additional injustice from the loss of provision because but for the fault she probably would not have used the direct payments. The Council has since cancelled the payments and is exploring activities for Miss W that it could commission directly.

What happened

Case 23 001 969: Special educational needs

32. At the time of her move to the Council’s area, Miss W had an EHC plan from Council B dating from July 2020. Under section F, the plan set out the strategies and approaches Miss W’s college should take to support her to access education. The plan also included Occupational Therapy (OT) support in section G, provided by a health organisation. There is no SALT provision in the plan.
33. Council B transferred Miss W’s EHC plan to the Council in late April 2022.
34. The Council reviewed Miss W’s EHC plan and issued an amended version in July 2022. In May 2022, prior to issuing the final plan, the Council asked a SALT if they would be able to help Miss W. The SALT confirmed they would, starting in September 2022 due to the school holidays.
35. There is no OT provision in the July 2022 plan. It included SALT provision of four 45-minute SALT sessions per term. The plan also said that following work with Miss W, the SALT would produce a learning programme and deliver staff training.
36. The SALT carried out Miss W’s assessment in late September 2022, when Miss W said she did not want SALT support. Miss W later agreed to the sessions and records from October show the Council and SALT service tried to arrange them. They found it hard to do so because of Miss W’s preferred timings.
37. In late November, the Council told Miss W it had arranged sessions to begin in mid-January 2023. The Council told me it does not know why the sessions could not start before Christmas 2022 but believes it was due to difficulties finding times Miss W would agree to. Miss W did not attend most of the sessions booked in during January to March 2023.

Findings

Case 23 001 969: Special educational needs

38. Mr X complained the Council failed to secure the OT and SALT provision in Miss W’s EHC plans. The Council took over the duty to secure the provision in Miss W’s 2020 EHC plan from the date of the transfer, in late April 2022. There is no SALT set out in Miss W’s 2020 plan, so the Council was not at fault. The OT provision in the 2020 plan is included in section G as a health need and is therefore delivered by health bodies. The Ombudsman cannot investigate the actions of health bodies; that is for the Parliamentary and Health Service Ombudsman (PHSO). It is open to Mr X to complain to the relevant health body first and then to PHSO about Miss W’s OT provision.
39. Miss W’s July 2022 EHC plan does not include OT provision, so the Council did not need to arrange any. However, it does include SALT provision. The Council acted without delay to secure the SALT provision, which began in September 2022. Miss W initially declined to engage with the SALT sessions, which was her decision to make. She later agreed to the sessions and the Council took suitable steps to arrange them. In late November, it confirmed the sessions would begin in mid-January 2023. Although the Council does not have a record detailing the reason the sessions could not begin in December, given there were only around three weeks left in the term, I am satisfied any delay would not amount to fault.

What happened

Case 22 016 125: Communication and response to Mr X’s complaints

40. Mr X complained to the Council in August 2022 about how it met Miss W’s adult social care and educational needs. The Council separated the complaints and responded to the complaint about adult social care in September and December.
41. In its September response, the Council said the delay carrying out Miss W’s needs assessment and care planning was in part due to Council B’s delay in making the referral. However, it acknowledged that once it received the referral in April 2022, it failed to recognise the case engaged the duties around continuity of care and this had contributed to the delay.
42. In its December response, the Council accepted it delayed responding to Mr X’s contact in early November about Council B cancelling the direct payments. It apologised.
43. In early January 2023, following further contact from Mr X, the Council said it recognised Mr X should have received a more responsive service and apologised. It allocated Miss W a new social worker who would act as a single point of contact.
44. The Council responded to Mr X’s complaint about the education issues substantively in mid-December 2022. Mr X raised concerns about the complaint responses and in late January and asked for a written reply from the Council’s complaints manager. The Council responded in late February. It found Mr X had asked for an update several times since late January and he did not receive responses in a timely manner. It apologised again.

Findings

Case 22 016 125: Communication and response to Mr X’s complaints

45. The Council has accepted, on several occasions, that its communication with Mr X has been poor. I agree with these findings and consider, overall, it amounts to fault. The fault caused Mr X avoidable frustration. The Council has since allocated Miss W a new adult social care social worker who will act as a single point of contact. This is an appropriate action to resolve the communication issues between Mr X and the adult social care department. The Council apologised each time it accepted its communication had been below standard, which is an appropriate remedy.

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Agreed action: Case 22 016 125

46. Within one month of the date of my final decision, the Council will:

• apologise to Mr X and Miss W for the frustration and upset they experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr X £150 in recognition of the frustration he experienced due to the Council’s fault; and
• pay Miss W, care of Mr X, £250 in recognition of the upset she felt due to the Council’s fault.

47. Within three months of the date of my final decision, the Council will review the following issues and identify areas for learning and training. It will send the Ombudsman an action plan setting out how it intends to address those shortcomings.

• The events in this case relating to continuity of care and in particular, the Council’s communication with Council B and the lack of staff awareness on the continuity of care duties.
• How it communicated with Mr X from April to December 2022.

48. The Council will provide us with evidence they have complied with the relevant above actions.

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Final decision

49. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman