Summary: The Council took too long to notify Mrs B that her son’s Education Health and Care (EHC) Plan would cease. It did not properly arrange his transition to adult social care in accordance with the law and guidance. The Council failed to maintain the EHC Plan while Mrs B’s appeal against the decision was outstanding. It took too long to assess his social care needs and to arrange care. The Council caused significant distress, uncertainty and frustration to Mrs B and her son. Mrs B’s son missed out on the educational provision set out in the EHC Plan. The Council has agreed to remedy the injustice it caused.

The complaint

1. Mrs B complains about how the Council handled her adult son’s social care and special educational needs. In particular, she says the Council:
• Took too long to notify her that it intended to cease her son’s Education Health and Care (EHC) Plan;
• Failed to provide her son with educational provision when he could not return to college;
• Failed to provide for son’s transition to a post-education phase;
• Failed to provide properly for her son’s care and support, asses his care needs in time, or organise direct payments; and
• Failed to keep her informed and took too long to respond to his complaints about this.
2. Mrs B’s son and his college was expecting him to return there for the new term, but this was not possible without an EHC Plan. It gave Mrs B no time to organise another setting or care and support for her son. This was extremely distressing and unsettling for her son and since leaving college he has not been active and is not progressing with his independence skills. The Council’s shortcomings have caused Mrs B and her family significant distress and frustration, and has affected Mrs B’s ability to work.

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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 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)
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)

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How I considered this complaint

5. I considered the information provided by Mrs B and discussed the issues with her. 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 taken into account all comments received before issuing this final decision.
6. 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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What I found

The law and guidance

EHC Plan process and educational provision

7. A child or young person with special educational needs may have an Education, Health, and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).
8. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
9. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
10. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
11. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Adult Social Care

12. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
13. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs.

What happened

14. I have set out below a summary of the key events. It is not a detailed account of everything that has happened.
15. Mrs B’s adult son, Mr K had an EHC Plan. A SEND Tribunal in 2020 had recommended that Mr K attend a three-year residential college course starting in September 2020. The EHC Plan set out the Mr K’s educational provision and this included support to form peer relationships, support to develop his communication skills, travel training supported by a designated officer, independence skills training, support with using hearing aids or with strategies when he cannot tolerate these, and timetabled sports and horticultural activities.
16. The EHC Plan also included social care that Mr K needed to meet his needs including support in maintaining personal hygiene, and speech and language therapy. The Council also funded support during the school holidays via direct payments.
17. The Council reviewed the EHC Plan in November 2022, when Mr K was 22. A Council Adult Social Care Social Worker (SW) also attended the review so that the Council could assess how Mr K would transition to adult care services when he left college. At the review Mrs B, having already liaised with the college, asked the Council to maintain the EHC Plan so that Mr K could have a final year at college.
18. The Council wrote to Mrs B in mid-December 2022 to confirm that it was considering ceasing the EHC Plan at the end of the Summer term 2023. It invited Mrs B’s views on this. Mrs B disagreed and asked the Council to consider a fourth year at the college. The Council did not respond to Mrs B and so she chased it towards the end of January 2023. The Council asked Mrs B to arrange for the college to confirm it could offer Mr K a further year so it could consider this. It also told Mrs B to liaise with social care in case Mr K did leave college at the end of the school year.
19. In March 2023, the college notified the Council that it recommended Mr K stay for a fourth year and set out its reasoning in detail. The college chased the Council for a response in April. Mrs B wrote to the Council in April saying that she was getting anxious about her son’s future. She asked the Council for a response to her request that a further year at college be funded.
20. Since the review, Mrs B had been asking the SW what options might be available for Mr K if the Council decided to cease the EHC Plan. The Council told Mrs B to await its decision on the EHC Plan before she started to arrange adult social care. In May, Mrs B continued to chase the Council and its case notes say that it needs to start planning for the EHC Plan to cease and to start a placement plan. Mrs B was very clear that not knowing the Council’s decision is extremely stressful and she regularly contacted the SW for an update.
21. The Council’s SW visited Mrs B at the beginning of June to complete a Care Act Assessment of Mr K’s needs. Towards the end of June, Mrs B chased the Council for a decision on whether it would cease the EHC Plan as Mr K only had three weeks left of college.
22. Towards the end of July 2023, Mr K’s Social Worker told Mrs B that the Council had not approved a fourth year at college. It had not at this stage however formally notified her in writing of this, or set out her right to appeal this decision to the Tribunal.
23. The Council sent the Care Act assessment to Mrs B at the end of July for her comments. Mrs B responded on 10 August and the Council met with her to discuss the assessment at the end of August. Its notes say it will update the assessment and present the case to its funding panel so that it can start a search for a supported living placement.
24. In mid-August 2023, the Council sent a letter to Mrs B again telling her that it may cease the EHC Plan and inviting her views on this. The Council has since explained that it had sent this letter in error and should have sent the formal decision letter at that stage. The Council told the college on 10 August. Mrs B asked the Council again whether it had made a decision on the additional year at college. The Council sent Mrs B formal notification that it was ceasing the Plan on 1 September 2023. Mrs B appealed the decision to the Tribunal.
25. Mrs B sought legal advice. She told the Council it needed to maintain the Plan while the appeal was pending. The Council told her it had written to her twice about this before it had given formal notice. The Council’s correspondence suggested that it had given Mrs B notice earlier than September and it would not maintain the Plan because she had appealed after it had ceased.
26. The Council sent Mrs B a list of daytime community activities for her son at the beginning of September and says it will start to look for a supported living placement for Mr K. Mrs B tried to contact the daytime providers but could not reach most on the list. At the end of September, Mrs B again asked the Council to implement the EHC Plan while she appeals. Mrs B told the Council there is no adult social care provision in place at that time and her son is getting more confused and upset.
27. The Council SEN team told Mrs B that she needs to contact the SW about Mr K’s social care. It also insists that the letters it sent to Mrs B in August stating it was considering ceasing the EHC Plan were in fact formal notices that the Plan would cease and she could have appealed then. Mrs B disputed this.
28. Mrs B complained to the Council in mid-September. In her complaint email, she points out that for nine months she had been chasing a decision on the additional college year and for help in arranging social care for her son in the event that the Council decide he cannot return to college. Mrs B also asked that the Council’s normal timescales be suspended as she needed urgent help. The Council responded at the end of November:
• it apologised for the delay in responding to the complaint.
• The Council also apologised that it had not written to Mrs B sooner to notify her that it was ceasing the EHC Plan.
• The Council acknowledged that Mrs B raised the matter several times with it before it properly responded.
• The Council also acknowledged that its liaison with the adult social care service could have been better and said it had identified improvements to its service.
• It had delayed in starting an assessment of Mr K’s adult care and support needs. It has supported Mr K to access daytime activities and it has a potential option for supported living and the social worker will present this option to the Panel for approval.
29. Mrs B says that although the Council said it had supported Mr K to access daytime services, it had not contacted her about this prior to her complaint despite her asking on numerous occasions.
30. In the meantime, the Council had identified a day centre that Mr K could attend two days per week. In October, the Council told Mrs B that it could not provide any of the educational provision set out in the EHC Plan as there was no tutoring. It did note that the EHC Plan mentioned sporting activities, and said that Mrs B could ask for a personal educational budget to pay for some activities in the community and that social care could help with a personal assistant to take Mr K out into the community.
31. The Council’s SW started referrals to community-based day activities in October. At the end of October, the Council discussed the ongoing situation with Mrs B and sent her the completed Care Act assessment. At this stage, Mr K was receiving no adult social care. The Council had made three referrals to community providers but was waiting for places to become available.
32. Mr K was not receiving his full package of care and support, so towards the end of October the Council decided to offer interim support to help add structure to his day. However, there was still no care and support plan and so it is not clear to Mrs B what interim support the Council will arrange. At the beginning of November, the Council proposed a supported living placement for Mr K. Mrs B visited this but decided not to go ahead because although Mr K may have been able to transition to supported living from his residential college, having been at home for some time with no social care had impacted on his independence and physical health.
33. In December 2023, the interim support started to help Mr K access the community during the week. Mrs B continued to ask the Council how it will deliver the EHC Plan while she is appealing.
34. When Mr K had been at college, his family received direct payments to pay for his care during the school holidays. The Council stopped paying this in October despite that alternative care had not been arranged. Mrs B asked the Council what was happening with the direct payments. The case notes say that Mrs B will need to do another financial assessment as the circumstances and payments had changed, but I cannot see that the Council told Mrs B that until January 2024.
35. By January 2024, the package of care was still not in place. Mrs B put together a weekly schedule of activities for her son spread across different community-based activity centres, and asked the Council how this could be funded. Mrs B had already been paying for some of these herself. The Council agreed that the schedule could go ahead, but direct payments had not been agreed. In March 2024, the Council decided it needed to assess Mr K’s mental capacity to decide his care and deal with direct payments. The Council completed the mental capacity assessment in April 2024.
36. The Council says it will offer Mr K 48 nights of respite care per year via direct payments. It says that Mr K now has a personal assistant to take him to activities for three full days per week, and spends two days per week at a day centre. In its response to my enquiries, the Council says that earlier planning may have helped but that the family took time to consider the options.

Analysis

37. The Council has acknowledged that it delayed formally notifying Mrs B that it would cease the EHC Plan. It says that it wrote to her to say it intended to end the Plan. However, these letters are not sufficient. It was not clear that the Council would end the Plan, and it asked Mrs B to arrange for the college to make the case for an additional year, which it did. The Council was wrong to say that its earlier letters gave Mrs B the right to appeal: she had no right to appeal until 1 September 2023 when the Council sent proper notification that it would cease the EHC Plan.
38. More importantly, the Council’s legal duty was to formally notify Mrs B of the Plan ending within four weeks of the annual review. The letters the Council sent were not formal notification and did not allow Mrs B to appeal the decision. In fact, by seeking her views, the Council gave Mrs B the impression that the Council was yet to decide whether to cease or maintain the EHC Plan. The Council should have notified Mrs B by 20 December 2022, and instead it was almost 36 weeks late when it wrote to her at the beginning of September 2023, only a week before Mr K was due to return to college.
39. This delay is fault by the Council. It caused Mrs B and Mr K distress and frustration. It delayed their appeal rights which they almost certainly would have used in the hope of organising a further year at college. Even if the appeal was not successful, if the Council had not delayed, Mrs B would have been able to organise social care for her son before he finished college, and properly plan his transition to this.
40. The Council should have maintained the EHC Plan while the appeal was pending, including his place at college, as that was named in the Plan. The Council has told me that Mr K received the educational provision he was entitled to under the Plan by way of community activities under his Care Act assessment. These are not the educational provision set out in the Plan. For example, the Plan says that Mr K should have peer relationship support; skills to access the community with travel training; support to develop independent living skills; support with personal care; and a timetable of sports, horticulture and life skills. Mr K has not had all of these. The Council was at fault for not maintaining the Plan while the appeal pends. The adult social care provision he has received is not comparable to that he would have under the Plan and so Mr K has missed out on his educational provision.
41. In addition, the Code makes clear that there should be a continuity of provision when a person moves from an EHC Plan to adult care service and a package of care under a Care Act assessment. It also says that the young person on leaving education should know what will happen when the EHC Plan ceases.
42. The Council took far too long to confirm its decision that the EHC Plan should cease. Alongside this the Council took too long to start the Care Act assessment and having completed the assessment in June, it did not send this to Mrs B until October. Although Mrs B was asking for information about independent living places and community activities since the EHC Plan annual review in November 2022, the Council did not give her any details until the beginning of September 2023. It did not start making referrals to community based providers until late September.
43. Mr K was then able to attend some sessions, but it was not a full weekly schedule. The Council commissioned a support worker, but this did not start until the beginning of December. By February, the Council still had not finalised Mr K’s care and support plan. I cannot see that any of this delay was attributable to Mrs B taking time to consider options. Mr K did not have continuity or provision, and he and his family did not know what would happen when the educational provision ended. The Council failed to meet the requirements of the Code.
44. The Council had been making direct payments for Mr K to have social care in the college holidays. The Council stopped making direct payments in October 2023, but did not explain to Mrs B what should happen next. The Council failed to take account of direct payments and what would happen when Mr K transitioned to adult care services, including whether he had capacity to decide his care and deal with direct payments.
45. The Council did not always respond to Mrs B’s key concerns and its communication with her was not always clear. The case notes refer to Mrs B being passed between Education and Adult Care Services. The Council also took too long to respond to Mrs B’s complaint.
46. The Council’s shortcomings caused significant distress, uncertainty, and frustration. Mr K was unable to properly transition from residential college to living at home. He was not able to say a proper goodbye to his college friends and Mrs B says her son began to lose the independence skills he had built up in college. Mrs B’s appeal rights were frustrated and delayed. Mr K did not receive the educational provision set out in his EHC Plan while the appeal was ongoing. It is very clear from Mrs B’s contact with the Council that its failures were impacting on the family, including Mrs B’s ability to work. Mrs B described herself as physically and mentally exhausted by the mishandled process.

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Agreed action

47. The Council will within one month of the date of this decision:
• Apologise to Mrs B for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Make a symbolic payment to Mrs B of £1,000. This is in recognition of the significant distress, uncertainty and frustration the Council’s failings caused her including that it delayed her appeal rights.
• Make an additional symbolic payment to Mrs B of a total of £5,400. This is in recognition of the missed educational and social care provision when the EHC Plan ceased. This takes into account that there was no real provision for the first term and that there was some provision for the following two terms but this was not comparable to that which would have been in place had the Council maintained the EHC Plan.
• Remind staff that:
1. appeal rights will only arise when the Council sends a letter notifying the parent or young person that the EHC Plan will cease;
2. staff should send notification within the legal time scales; and
3. if the decision is appealed, the Council should maintain the Plan including the placement while the appeal is outstanding.
48. The Council will also within three months of the date of this decision ensure a copy of our final decision is considered by the Children’s Policy Development & Scrutiny committee and Portfolio Holder and share a copy of our final decision with all relevant staff, to include dealing with ceasing EHC Plans and transition from EHC Plans to Adult Social Care.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation. There was fault by the Council causing injustice to Mrs B and Mr K.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman