The Ombudsman's final decision
Summary: Y complains the Council failed to hold annual reviews when it should have, and about a lack of transitional planning to adulthood. We have concluded our investigation having made a finding of fault by the Council. The Council failed to comply with statutory process causing Y an injustice. We did not find fault with how Direct Payments were ceased but acknowledge that more accountable processes may have mitigated against Mrs X not receiving the letter. Further, we found that the absence of annual reviews was a missed opportunity for further planning and caused avoidable uncertainty for Y in regard to his preparation for adulthood. The Council has agreed to our recommendations.
The complaint
Mrs X complains on her behalf of her son, Y. Mrs complains about a lack of EHCP reviews since 2019, and a lack of transition planning for Y. Mrs X also complains the Council stopped direct payments without any proper review. Mrs X says that Y had to fund equipment himself, and that the absence of help and support have impacted Y’s wellbeing. Mrs X would like the Council to award a remedy befitting of the impact had on Y.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)
How I considered this complaint
I liaised with Mrs X and considered the information she provided. I also considered the information the Council provided in response to my enquiries. Mrs X and the Council will now have an opportunity to comment on my draft decision before I make a final decision.
What I found
The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
Councils must review an EHC plan at least every 12 months.
If the review is held in the child’s school, the school must prepare and send out a report setting out any amendments to the EHC plan it is recommending. It must do this within two weeks of the review meeting.
Within four weeks of the review meeting, the Council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. If it decides to amend it, it must do so without delay and issue an amendment notice to the child’s parent of its decision.
Although the Code does not give any deadline for the issuing of an amendment notice, a recent high court decision says any draft amended plan must be issued within four weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review. (L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin)) The Council must send the draft EHC plan to the child’s parent and give them at least 15 days to give views and make representations on the content.
When it suggests and agrees changes to the draft EHC plan it should amend the draft plan and issue the final EHC plan as quickly as possible. It must happen within eight weeks of the date the Council sent the proposed amendments to the parents.
Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC plan.
In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.
The Council must review and amend the EHC plan in sufficient time prior to a child or young person moving between key phases of education. This is to allow for planning for and, where necessary, commissioning of support and provision at the new institution. It must complete the review and any amendments by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. (SEN Code paragraph 9.179).
SEND Code of Practice Under the Care Act 2014, the local authority must carry out an adult care transition assessment where there is significant benefit to a young person or their carer in doing so and they are likely to have needs for care or support after turning 18.
Preparation for adulthood For young people with EHC Plans, the annual review in Year 9 and every annual review after that must include a focus on Preparing for Adulthood (PfA). This should include consideration about employment / higher education, independent living, and participation in society.
Transition planning must be built into the revised EHC Plans and should result in clear outcomes being agreed which will prepare the young person for adulthood.
What happened I have included a summary of some of the key events in this complaint. This is not intended to be comprehensive account of everything that took place.
In November 2018, an annual review for Y is held.
In August 2019. Y’s final amended EHCP was issued. Y, at the time was 16, and College A, an apprenticeship training college, was named on the EHCP.
Y was also in receipt of Direct Payments for 3 hours a week to support engagement of opportunities with his peers.
In January 2021, the Council sent a letter advising that direct payments would cease from May 2022.
In July 2022, Mrs X complained to the Council that since Y’s EHCP was issued in 2August 2019, the Council had failed to review the plan. Mrs X also complained to the Council that it ceased direct payments on Y’s 18th birthday without notice and a full assessment by adult care services.
Analysis Annual reviews The Council should have reviewed Y’s EHCP between 2020-2022. Failure to do so is fault. The Council has acknowledged that it did not complete an annual review of Y’s EHCP between 2020-2022; it says that unforeseen absence to the co-ordinator responsible for post-16 EHCP’s led to the reviews being missed.
An annual review was subsequently held in February 2023. It is noted there were some changes were made to Y’s outcomes, but no changes to Y’s needs nor the provision required to meet those need. Mrs X has stated that Y’s wellbeing deteriorated during this period and so his needs had changed, however the annual reviews states that there is no significant update from health or social care, and the Council has no record from Mrs X or Y raising such issues at the annual review, or in any other correspondence. It follows that the evidence does not demonstrate a significant personal injustice to Y, but the avoidable distress having not held the annual reviews should be remedied by the Council.
In response to my enquiries, the Council proposed a remedy of £300 as a symbolic payment to acknowledge the avoidable distress. Having reviewed our guidance on remedies, I consider this is a proportionate remedy to the injustice caused.
Direct payments In January 2021, the Council says it sent a letter, advising that Direct Payments would cease when Y turned 18. Mrs X disputes this, and says she did not receive the letter.
The letter set out that if there was a wish to continue to receive Direct Payments, that a self-referral would need to be made to the Adult Services Department for a further assessment. The Council provided contact details where the referral could be made.
I understand this letter to be dated on a bank holiday, which has created doubt about whether the letter was infact sent as described by the Council. The Council has said that the staff member who composed the letter was working from home when the letter was created and would be printed and posted on the next working day from its distribution centre.
On balance, I consider that both accounts are likely to be true. I recognise this period to be one where the country was affected by COVID-19, impacting services and working arrangements, and it is probable that whilst the letter was sent, equally it was not received by Mrs X.
I consider this to be a set of circumstances outside the control of either party and one which is not the result of fault. Where we have not found fault, we do not make recommendations, but the Council should be reminded that better and more accountable internal processes are likely to have mitigated such events. For example, by perhaps following up with Mrs X, or sending a reminder closer to the date that Direct Payments were due to cease. This may have presented an opportunity for Mrs X and Y to plan ahead and have made a referral if they so wished.
Mrs X raised concerns regarding Y’s transition to adult social care. Guidance on the matter is clear, and as per paragraph 18, ‘the local authority must carry out an adult care transition assessment where there is significant benefit to a young person or their carer in doing so and they are likely to have needs for care or support after turning 18’. The Council notes that Y was assessed as requiring no children’s social care support or services other than being in receipt of a direct payment. I take this to mean that the Council did not assess that there would be a significant benefit or that Y would have needs for care or support after turning 18 and so did not complete an adult social care transition assessment.
It is however noted that whilst I have not made a finding of fault, such an approach is not in the best interests of the young people, and the Council should be reminded that more accountable practices would better serve in the interests of those who may otherwise benefit from its support and assistance.
Preparation for adulthood The Council said that Y’s EHCP issued in August 2019 plans for his transition into the workplace, with specific outcomes and provision to meet those outcomes.
As per paragraph 17, transition planning must be built into the revised EHC Plans and should result in clear outcomes being agreed which will prepare the young person for adulthood.
Whilst I acknowledge the Council’s comments that transitional planning is present in Y’s EHCP from 2019, the annual reviews that did not take place between 2020-2022 were a missed opportunity for further planning and consideration that Y may have benefited from.
The outcomes were amended following an annual review in February 2023, which supports my assertion of missed opportunity for additional planning in the missed years. In the absence of annual reviews taking place between 2020-2022, I consider there is fault by the Council for a lack of transitional planning.
We cannot say what would have happened had the Council acted without fault and undertaken annual reviews between 2020-2022 that would have presented an opportunity for further transitional planning. However, we consider this caused Y added avoidable uncertainty.
The Council says that post-16 EHCP’s has since been distributed amongst the wider team, and is no longer reliant on one single member of staff, thus mitigating against unforeseen staff absences.
When I made enquiries to the Council, it acknowledges that other young persons were similarly affected, but that any complaints brought before it were resolved to the complainants satisfaction.
It is my view that the reliance on single staff members significantly contributed to events that impacted Y. I have considered this together with the changes to the Councils processes when deciding upon the appropriateness of recommending service improvements to the Council.
Agreed action
To resolve matters, the Council has agreed to: Pay Y an amount of £500. This is to acknowledge the avoidable distress caused by not complying with the statutory process. Further to the Council’s proposed £300, I am recommending an additional £200 to acknowledge the avoidable uncertainty caused through a lack of further transitional planning that would have otherwise taken place.
Provide a written apology to Y. The apology should be in line with our published guidance on remedies.
I have not recommended any service improvements as per paragraph 37.
The Council will complete action point a and b within one month of the Ombudsman’s final decision.
Final decision
I have concluded my investigation having made a finding of fault by the Council. The Council failed to comply with statutory process causing Y an injustice. I did not find fault with how Direct Payments were ceased but acknowledge that more accountable processes may have mitigated against Mrs X not receiving the letter. Further, we found that the absence of annual reviews was a missed opportunity for further planning and caused avoidable uncertainty for Y in regard to his preparation for adulthood. The Council has agreed to my recommendations.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman