The Ombudsman's final decision
Summary: The Council had offered a suitable remedy to the complainant for the lack of appropriate Adult Services to her disabled son. But the Council had not considered and remedied the injustice caused by the failures of Children Services, faults which the Council had already identified. The Council has now offered a suitable remedy for this injustice. We are therefore closing the complaint.
The complaint
The complainant, Miss X, complained about the poor transition of her son, Mr Y, from Children to Adult Services.
Mr Y has complex needs, has a diagnosis of autistic spectrum condition (ASC) and learning disabilities. Miss X says that the lack of services has caused significant avoidable distress to her and her son, and they have become isolated and depressed. Miss X has also had a financial loss by having to pay for care for her son, which the Council should have provided.
The Council investigated the complaint, appointing an independent investigator. The Council has accepted the findings of fault causing an injustice made in that independent investigation.
The Ombudsman’s role and powers
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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
We cannot investigate late complaint unless we decide that there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has or has not done. (Local Government Act 1974, Sections 26B and 34D, as amended).
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)
What I have and have not investigated There is a detailed investigation report into Miss X’s concerns about the lack of services when Mr Y lost his school placement in July 2022, and about the poor transition to Adult Services. I have not reinvestigated these matters because I considered this independent report was thorough and covered Miss X’s main concerns. Therefore, I only considered whether the remedy offered by the Council to Miss X for the injustice caused was sufficient.
Miss X says Mr Y has been without a school place since July 2022. Miss X now has a Special Educational Needs and Disability (SEND) Tribunal concerning this.
How I considered this complaint
I considered the information provided by the Council and by Miss X. I spoke to Miss X on the telephone. I issued a draft decision statement to the Council and to Miss X and have considered their further comments before reaching my final decision.
What I found
Transition from children to adult social services 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. However, councils can decide to treat a children’s assessment as an adult assessment and can also carry out joint assessments.
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. 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.
The council must involve the young person in the assessment and should consider whether they need an advocate to fully participate. It should also involve anyone else the young person wants to involve, such as their carer.
The assessment must identify all the young person’s needs for care and support and identify the outcomes the young person wishes to achieve. The assessment should also consider whether the carer is able to continue in their caring role after the young person turns 18.
After completing the transition assessment, the council must give an indication of which of their needs are likely to be “eligible needs” under the Care Act 2014. This is so young people, and their carers, can understand the care and support they are likely to receive and can plan accordingly.
If transition assessment and planning is carried out as it should be there should be no gaps in the provision of care and support. However, if adult care and support is not in place when the young person turns 18, the council must continue providing the services under children’s legislation until it is in place.
If a council is going to meet the person’s needs under the Care Act after they are 18, it must create a care and support plan and produce a personal budget. This is the money the council has worked out it will cost to arrange the necessary care and support for that person. This needs to be done early enough that the package of care and support is in place at the time of transition.
Direct payments Where there is a need for care and support for a child or adult, the Council can: provide or commission services to provide the support directly; or make direct payments to the service user (or their representative), so they can arrange care and support themselves.
Special Educational Needs (SEN) An Education, Health and Care (EHC) plan sets out the child’s needs and what arrangements should be made to meet them. The Children and Families Act 2014 enables councils to continue children’s services beyond age 18 and up to 25 for young people with EHC plans.
The Council’s policy on the transition from children services to adult services The policy requires children and adult services to work together, and that adult services should attend a young person’s annual review of their EHC plan in the school year 9 (approximately when a young person is 14 years old).
Key facts Mr Y has an EHC Plan. He has significant needs, is non-verbal and suffers from epilepsy. Mr Y attended school until, in July 2022, the school stated it could no longer manage his needs. Miss X says the loss of this school place has been very difficult because Miss X had to take on the fulltime care of her son, and Mr Y lost a provision which he enjoyed.
While Mr Y was under eighteen, the Council’s Children Services provided 48 nights respite care per year, which Miss X says was extremely helpful. But the respite care was stopped in February 2022 and there was no care package from Children Services from July 2022. This period was covered in the Council’s independent investigation.
The Council carried out a care assessment under the Care Act in May 2022. In late 2022, the Council’s Children Services ended its involvement when Mr X turned eighteen.
Miss X complained to the Council. The Council agreed some direct payments for a respite service.
In February 2023, it was agreed that Mr X was eligible for National Health Service (NHS) continuing health care (this money is provided by the health trust to meet a person’s needs). I understand that, from February 2023, all of Mr X’s care and support needs are being provided by the NHS.
The Council’s investigation In November 2023, the independent investigation upheld the following complaints: the Council failed to plan appropriately for Mr X’s transition to Adult Services; there was no appropriate respite care from February 2022; there was no support package of support since July 2022; the Care Act assessment did not properly reflect Mr X’s needs; there was a delay in arranging appropriate support after the carer’s assessment; there was a delay in arranging support by direct payments; the Council did not consider Miss X’s disability related expenses; and there was poor communication with the family.
The independent investigation recommended a review of the Council’s transition procedures, that there should be joint assessments by children and adult services, that the Council should look at the lack of available respite care, that Miss X’s disability related expenses should be paid, and the Council should apologise to Miss X.
In December 2023, the Council apologised to Miss X for the avoidable distress, and for the delay in completing the independent investigation. The Council said that it would complete the recommendations within a four-to-twelve-week period (the service improvements taking longer).
The Council advised that Miss X could refer her complaints to the Ombudsman, if she remained dissatisfied.
Miss X complained to us in February 2024 expressing concern about the poor transition of Mr X to Adult Services, the failure to find Mr X an alternative educational placement and the adverse impact the Council’s actions have had on Mr X and herself.
The Council’s remedy for the injustice caused In mid-February 2024, after Miss X had complained to us, the Council wrote to her with a proposed financial remedy. The remedy consisted of: £297.00 of direct payments for care which the family provided; £1,386 for seven weeks of care, which an agency should have provided, plus a similar payment to Miss X’s partner; £497.10 for additional energy costs while Mr X was at home; £1,081.20 for Miss X’s costs in arranging activities for Mr X; £1,178.32 for eleven nights of missed respite; £500 for Miss X’s avoidable distress; and £250 for her time and trouble in pursuing her complaints.
The Council has also agreed to improve its procedures as set out in paragraph 27. I recognise that these service improvements may take longer to achieve, as the Council has indicated.
However, it was not clear from the Council’s February 2024 offer what period the remedy covered. Miss X has told me that it only covered the period once Mr Y became an adult at eighteen. Miss X says that there is no specific remedy for the injustice caused by Children Services wrongly withdrawing its support before Mr Y turned eighteen and was still a child.
The Council agreed to consider a remedy for the injustice caused by these earlier faults.
Findings
The Council carried out a thorough independent investigation and it accepted the findings of fault. The Council apologised to Miss X and offered a financial remedy for the period after November 2022 to February 2023.
But, although the Council had accepted fault for the period since February 2022 relating to Children Services’ actions (namely loss of respite from February 2022 and lack of a care package since July 2022), the injustice caused had not been remedied.
The Council agreed to consider a financial remedy for the loss of Children Services’ provision. It now says it will apologise to Miss X, make a payment of £1,000 for the lack of Children Services’ provision and £1,000 for the avoidable distress.
Miss X does not consider this remedy offer represents the full cost of the lost provision. But we have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We do not seek to remedy a loss of service by recommending payments of the full cost of that loss.
Therefore, I consider that the Council’s suggested remedy is appropriate and in keeping with our guidance on remedies.
We also support organisational learning and improvements to help others.
In respect of the Council’s agreed service improvements, it is to the Council’s credit that it accepted service improvements were required and showed a willingness to learn from complaints. This does not necessarily offer a remedy to Miss X. But it should mean other parents/carers should not be affected by the same faults.
In respect of Miss X’s concerns about the lack of educational provision, the Council’s investigation did not look at this, although Miss X raised this at the time of her other complaints. However, it would be open to Miss X to make a complaint to the Council about the lack of appropriate education, as a separate and new matter, which the Council should consider.
Agreed action
We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified. The Council has apologised for the loss of Adult Services and the Director will now apologise for the loss of Children Services The Council has agreed within one month of the final statement: to apologise and make a symbolic payment to Miss X for her and Mr Y’s injustice caused by the lack of Children Services’ services since February 2022. It will be for Miss X to decide how best to spend this in Mr Y’s best interests. The Council has already made a payment for the loss of Adult Services; and for the sake of completeness, the Council will provide us with a brief update on progress of the service improvements.
Final Decision
The Council has found fault and injustice concerning the lack of Children Services, the poor transition to Adult Services and lack of appropriate services once Mr Y became eighteen. I endorse those findings and the remedies offered.
Therefore, I am closing the complaint.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman