Summary: Miss X complained the Council failed to appropriately plan for her transition from children to adult care services, and to support her to stay with her foster family until she was 25 on a staying put arrangement it had previously agreed. There was fault in the way the Council considered a staying put arrangement for Miss X. The Council failed to appropriately plan for Miss X’s adult care needs. The Council agreed to pay Miss X £1000 to recognise the frustration and distress this caused her and to reconsider her request for a staying put arrangement with her foster carers.

The complaint

1. Miss X complained the Council failed to appropriately plan for her transition from children to adult care services. Miss X further complained the Council:
• failed to support her to stay with her foster family until she was 25 on a staying put arrangement it had previously agreed; and
• failed to identify and plan for her adult care needs.
2. Miss X said the lack of a clear plan and ongoing support caused her significant distress and anxiety.

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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. We cannot question whether an organisation’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, section 34(3), as amended)
5. 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)
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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How I considered this complaint

7. I read the documents provided by Miss X and I have discussed the complaint with her.
8. I read the documents provided by the Council in response to my enquiries.
9. I considered our guidance on remedies which is available on our website.
10. Miss 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

Legislation for children with special educational needs or a disability

11. A child with special educational needs or disabilities may have an Education, Health and Care (EHC) plan. The plan sets out the child’s needs and what arrangements should be made to meet them. An EHC plan supports the child until the age of 25, or until they finish education.
12. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need. A child is in need if they are disabled. Services to support children in need are provided by a council’s children’s services department.
13. When a child reaches 18 years old, 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. Statutory guidance says transition assessments should begin for a young person with an EHC plan at age 13 or 14.
14. After completing the transition assessment, the council must say which needs are “eligible needs” under the Care Act 2014, and which are not. This is so the young person and their carers can understand the care and support they are likely to receive as an adult and can plan accordingly. For those needs that are not eligible the council must provide information and advice on how those needs can be met.
15. Transition assessment and planning should ensure there are no gaps in the care and support. The Council should produce a care plan that says how it will meet the care needs. If adult services are not in place when the young person turns 18, the council must continue to provide the services under children’s legislation until it is in place, or until it decides the young person does not have “eligible needs”.

Legislation for children in foster care

16. Care Orders are issued by a court under the Children Act 1989. A care order gives the council parental responsibility for the child. The Council then decides where the child should live and who they should live with. The Council can choose to place a child with a foster carer or family.

Staying put

17. The aim of the ‘staying put’ guidance is to ensure young people can stay with their foster carers, even after they turn 18. The Council’s staying put policy says arrangements will usually continue until the young person is 21. If there are ‘compelling individual circumstances’ it has the discretion to agree further arrangements until the young person is 25. The legislation allows for this to happen.
18. The Council’s policy on staying put which was in place June 2019 said it was designed to ensure young people:
• do not experience a sudden disruption to their living arrangements;
• have their educational achievement and continuity promoted; and
• can make a gradual transition from care to independence or to an adult service.
19. The policy states that staying put arrangements should be discussed with the foster carer, young person and relevant social workers at the review before the young person’s sixteenth birthday. When the young person is 17 years and 3 months old the case should be presented to the Council’s resource panel to make the necessary arrangements.

Leaving foster care

20. The Children Act 1989 places duties on councils to provide continuing support for children leaving care. If the council is helping them with education and training, the duty continues until age 25 or to the end of the agreed training (which can take them beyond their 25th birthday). 
21. Councils should appoint each care leaver with a personal adviser and provide a pathway plan. The personal adviser will ensure the care leaver gets the right support around their education, living skills, relationships and accommodation. The plan should be based on a thorough assessment of the person’s needs. It should include specific actions and deadlines detailing who will take what action and when. The social worker should review them at least every six months. 
22. The guidance says that when young people leave their care placement the council must ensure their new home is suitable for their needs and linked to their wider plans. Moving directly from a care placement to living independently is often too big a step for young people. It is therefore good practice for councils to commission semi-independent and independent living alternatives with suitable support. 

Adult social care

Ordinary Residence

23. Councils’ responsibility for meeting a person’s eligible needs under the Care Act 2014 is based on the idea of ‘ordinary residence’. There is no definition of ordinary residence in the Care Act. It is usually possible for councils to decide the person has lived in one place long enough, or intends to live there, to decide they have got an ordinary residence there.
24. There may be some cases where the council considers it can meet a person’s care and support needs by providing accommodation in another authority area. The principle is the person placed in a different council area remains ordinarily resident in the ‘home’ authority area. The council which arranges the accommodation, therefore, keeps responsibility for meeting the person’s needs.

Shared Lives

25. Shared lives is a way of providing care for adults with care needs. Being a shared lives carer is similar to being a foster carer, but for an adult. Shared lives carers become self-employed and are usually paid by the commissioning council. Sometimes this is paid indirectly through a third party organisation, a bit like private foster carers.

What happened

26. Miss X has autism spectrum disorder, learning disabilities, physical disabilities and medical issues including a condition that will get progressively worse. In 2017 Miss X was 16 and she lived with her foster parents.
27. When Miss X was a young child, the Council obtained a care order for her and placed her with foster carers Mr and Mrs T. Mr and Mrs T lived in a different Council area, Council Q.
28. The Council had parental responsibility for Miss X and, as the placing authority it was responsible for meeting her assessed needs.
29. Miss X had an EHC plan for her educational needs which Council Q maintained and funded.

Staying put and transition planning

30. In July 2018 Miss X’s social worker from children’s social care made a referral to the Council’s transitions team to support Miss X to transition to adult social care. The social worker recorded Miss X wanted to use staying put arrangements to stay with her foster parents.
31. In October 2018 the Council assigned Miss X a social worker from the transition team. Miss X told the social worker she wanted to stay with her foster parents after she was 18.
32. In November the Council decided Miss X could not access the staying put provision because it would stop her accessing adult social care services provided by Council Q. It said Mr and Mrs T could become shared lives carers for Miss X. It decided it would refer Miss X to Council Q’s transition team.
33. In January 2019 the council made a referral to Council Q for an adult social care assessment for Miss X. Mr and Mrs T told the Council they did not want to be shared lives carers.
34. In March 2019 Council Q told the Council that it would not take responsibility for Miss X’s care. Council Q did not consider Miss X to be ordinarily resident in its area.
35. In June 2019 the Council discussed Miss X’s case at a panel meeting. By this time Miss X was 18. It said Miss X’s foster parents could become shared lives carers. It said it would continue to pay the fostering fees while it discussed responsibility for Miss X with Council Q.
36. In July the Council held a panel meeting about Miss X’s continuing care. The panel decided the only choice was for Miss X’s foster parents to become shared lives carers. Miss X’s foster parents declined to become shared lives carers and said they could not afford to care for Miss X without financial support. The Council decided that Council Q was responsible for funding continuing support as Miss X was ordinarily resident in its area.
37. The Council’s adult care service assessed Miss X’s adult care needs. In October 2019 it decided that Miss X had eight eligible care and support needs.
38. In January 2020 the Council suggested Miss X get direct payments to replace the fostering allowance that it paid to her foster parents. Miss X could use the direct payments to pay Mr and Mrs T. The case notes said Miss X needed 30hrs support per week to meet her needs. The Council completed a capacity assessment and decided Miss X did not have capacity to manage her own finances. The Council decided direct payments were not suitable.
39. In April 2020 the Council wrote to Miss X, by this time she was 19. It told her that she had moved from children’s to adult social care and it was responsible for funding her care. It said that it could not offer her direct payments. It said a staying put arrangement was not suitable for her needs. It said Mr and Mrs T had turned down being shared lives carers. The Council said the fostering payments would stop.
40. In January 2021 the council wrote to Mr and Mrs T. It said that it had paid a fostering allowance for Miss X until November 2020 and then provided discretionary payments until January 2021. It said it would not make any further payments for Miss X’s care.
41. In March 2021 Social Worker A reassessed Miss X’s adult care needs. The Social Worker did the assessment over a video call. They found that Miss X did not have any eligible care needs and therefore did not need any adult social care support.
42. Mrs T contacted the Council and said that she could not afford for Miss X to continue living with her without some form of financial payment.
43. In April the Council wrote to Mr T. It said that Miss X could use a staying put arrangement until she was 21. It said that Miss X’s adult care needs were the responsibility of Council Q. Miss X was now 20.
44. In May 2021 Miss X complained to the Council. She said:
• she wanted to remain with her foster parents until she was 25 years old;
• she did not agree with the adult care assessment as she had not been able to contribute properly to the assessment;
• the assessment contained incorrect information, and Miss X provided more information about her care needs; and
• she was very worried and upset about the uncertainty of where she would live in the future and it was affecting her mental health and education.
45. In June 2021 Council Q confirmed it did not accept responsibility for Miss X care needs as she was not ordinarily resident in its area.
46. The Council responded to Miss X’s complaint. It said it would amend the adult care assessment with the extra information she had provided.
47. In October 2021 Social Worker A reassessed Miss X’s adult care needs. The assessment found that Miss X had seven eligible care needs. It recommended that Miss X received 15 hours support a week from a personal assistant to improve her independence. The assessment stated with that support ‘it might be possible for [Miss X] to eventually have her own flat and tenancy’.
48. Miss X explained to the Social Worker that she could not access the 15 hours independence work as she was in full time education. She said she was already learning independence skills with Mr and Mrs T and didn’t think this support would help.
49. In November the Council held a meeting with Miss X and Mr and Mrs T. The Council said if Mr and Mrs T asked Miss X to leave their home when she was 21 then it would try to source a placement for her, or apply for Miss X to go on the housing list. Miss X and Mr and Mrs T said they wanted Miss X to stay with them until she was 25 on a staying put arrangement.
50. In January 2022 Miss X complained to the Council. She said she wanted Council Q to complete an independent assessment of her needs as she felt she could not trust the Council. She complained the Council had agreed staying put until she was 25 but then backtracked on the offer.
51. In January 2022 Council Q completed an annual review of Miss X’s EHC plan. It stated the EHC plan remained appropriate for Miss X’s needs. It also stated that Miss X’s plans for the end of the academic year were unknown.
52. In February 2022 the Council responded to Miss X. It said that it had made a referral to Council Q’s adult social care team for it to complete an assessment. It said that staying put arrangements were only until the age of 21. It had agreed to continue funding her placement for three months until Miss X had finished her college course.
53. Dissatisfied with the Council’s response Miss X complained to us.
54. Miss X told me that when she finished her college course in June 2022 she intended to continue studying at the next level of the course. Miss X did not intend to leave education.
55. In response to my enquiries the Council stated its adult social services would have funded shared lives carers for Miss X while it continued to discuss Miss X’s ordinary residence with Council Q. However, Miss X would have had to live in the Council’s area, therefore Mr and Mrs T could not have been Miss X’s shared lives carers.
56. In response to my draft decision the Council said it would have funded Mr and Mrs T to be Miss X’s shared lives carers, even though they lived out of the Council area.

Pathway planning

57. In December 2018 the Council developed a pathway plan for Miss X. Actions from the plan stated Miss X would continue to attend school, hospital appointments and to see family members. It said she would stay with her foster parents on a staying put plan past the age of 18 and later she would move to a semi-independent unit with a high level of support.
58. In July 2019 the Council reviewed Miss X’s pathway plan. There were no changes to the pathway plan other than to note the dispute with Council Q about ordinary residence and responsibility under the Care Act.
59. In May 2020 the Council reviewed Miss X’s pathway plan. The actions said Miss X needed a plan to prepare her for supported living when she turned 25. It did not state what the plan would consist of or when the Council would develop it.
60. The Council states it reviewed the plan in December 2020. The plan is identical to the previous plan, other than the date.
61. In June 2021 the Council reviewed Miss X’s pathway plan. The pathway plan refers to Miss X’s foster parents as her staying put providers as she had left care. It stated Miss X needed a plan to support her when she left her foster parent’s house. It said this was awaiting the outcome of the adult social care assessment, and a housing application had been made to Council Q for Miss X.
62. In November 2021 the Council stated it reviewed Miss X’s pathway plan. The plan was identical to the previous plan, other than the date. It stated Miss X need to pass her current course to continue on to study her chosen course.

My Findings

63. Miss X was a child in need due to her disabilities and special educational needs. She had complex needs. Miss X was also a looked after child. When she became 18, she was entitled to proper and robust planning to ensure her transition from children’s services to adult services was smooth, well managed and met her needs.
64. In 2018 the Council was aware Miss X and her foster carers wanted Miss X to stay at home until she was 25. Miss X and her foster carers have been consistent in that wish to the date of this decision. Miss X stayed in education throughout and intended to continue in education at the date of this decision.

Staying put

65. In November 2018 the Council decided staying put would not be suitable as it would prevent Miss X accessing adult services. At this point the Council had not assessed Miss X’s adult care needs. It could have considered continuing to meet her needs through children’s services. It later agreed Miss X could access the staying put service without Miss X’s needs or situation changing. The guidance is specifically designed for care leavers with complex additional needs to stay in their foster placements to support their transition to adult care services. The Council did not have proper regard to this when deciding a staying put arrangement was not appropriate. This was fault.
66. In April 2021, the Council told Miss X she could not access staying put as it was only available until the age of 21. I have seen no evidence the Council considered its discretion in this case. That was fault and was not in line with the Council’s policy which states it is available until 25 at the Council’s discretion.
67. The faults caused Miss X distress and uncertainty about what the result would have been had the Council properly considered her request in line with the guidance and its own policy.

Transition planning

68. Once the Council decided it would not provide Miss X with a staying put arrangement it should have provided proper transition assessments and planning.
69. I have seen no evidence the Council developed a care and support plan for Miss X adult care needs. The Council completed three assessments of Miss X’s needs over two years. The assessments varied significantly in terms of identifying Miss X’s needs and the reasons for these differences is unclear. Further, the Council suggested Mr and Mrs T became shared lives carers for Miss X before it had assessed her adult care needs. It stated Miss X needed direct payments to fund 30 hours of care without identifying what support needs those payments would cover or how the support would be provided. Miss X told the Council she could not access the 15 hours support it had suggested in the final assessment and did not think it would meet her needs. The Council did not take any action to address her concerns and did not offer Miss X any further support.
70. The Council continued to fund Miss X’s foster payments until the end of the academic year following her 21st birthday. However, it was inconsistent and confusing in its decision making and in its communication with Miss X and Mr and Mrs T about the matter. I cannot say the Council had originally agreed Miss X could use staying put until she was 25 and then changed its mind. However, the Council’s records show there was significant confusion about how it would support Miss X after she turned 18 and the position is still not clear.
71. The Council made several attempts to engage Council Q with Miss X’s continuing care. Council Q was consistent in its response that Miss X was not ordinarily resident in its area and it was not responsible for her care. Regardless of who had legal responsibility for Miss X the Council should have ensured there were no gaps in the care and support it provided to Miss X. The Council became preoccupied with identifying the funding source for Miss X’s continuing care and neglected to ensure Miss X’s needs were being met and planned for.
72. The faults identified in paragraphs 69 to 71 have caused Miss X uncertainty, distress, concern and frustration over 31 months. At the time of writing, it appears that after June 2022 Miss X will have no foster care or adult social care in place to meet her complex and progressive needs.

Pathway planning

73. Miss X’s pathway plan did not have specific actions and deadlines, particularly for her educational and living arrangements. The plan stated Miss X needed a plan for where she would live as early as October 2018 but it did not develop that plan. That was fault.
74. The Council should have reviewed Miss X’s pathway plan every six months, it did not do so. The paperwork shows it reviewed the plan in May 2020 and June 2021. The actions outlined in the plan were broadly the same in November 2021 to the plan in 2018. That was not in line with the guidance and was fault.
75. The failings mean that from June 2022, when the staying put arrangement ended, Miss X had no personal adviser support, no planned accommodation and no planned education or employment. This caused her uncertainty, distress and frustration, and affected her mental health.

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Agreed action

76. Within one month the Council agreed to:
• write to Miss X and apologise for the distress, frustration and uncertainty caused to her by the faults identified;
• pay Miss X £1000 to recognise the impact of the faults since November 2018;
• reconsider Miss X’s request to remain with her foster parents on a staying put arrangement until she is 25 and remains in education, in line with the guidance and its own policy. It will write to her with its decisions, setting out its reasons;
• if the Council decides it cannot offer Miss X a staying put arrangement with her foster carers until she is 25, it will arrange for an independent social worker to complete a needs assessment and care and support plan for Miss X’s complex adult care needs. The assessment, and care and support plan will be completed within one month of its decision not to offer the staying put arrangement; and
• the council will continue to fund Miss X’s current staying put arrangement until it has put in place continuing care and support;
• the Council will consider if it will fund Council Q to provide any identified care and support until Miss X turns 25.
77. Within two months the Council agreed to:
• remind relevant staff members to consider requests for staying put arrangements in line with the statutory guidance and its own policy; and
• review all staying put arrangements it has declined in the last 12 months to ensure it considered them in line with the statutory guidance and its own policy.
78. The Council will provide us with evidence it has completed the recommendations.

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Final decision

79. I have completed my investigation. I found fault leading to injustice and I made recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman