Author Archive for belindaschwehr

Happy parent given the means to fight a 3x increase in her son’s charges

Thank you, thank you so  much for your detailed and clear guidance. I am extremely grateful for your revision and all the notes regarding my next homework; for now I thank you enormously 

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CP v North East Lincolnshire Council [2018] – a much needed judicial re-statement of pre-Care Act legal principle about the transparency of, and requirement for, an explicit Personal Budget!

In this case a challenge was made about the provision for a 22-year-old woman, CP, with complex and multiple disabilities requiring round-the-clock care.

CP’s parents and the local authority were also engaged in an FTT appeal about educational provision which had a bearing on what else was or might be needed. They continued Alternative Dispute Resolution (ADR) efforts during that appeal and, by the time of the judicial review hearing, had essentially reached agreement about the degree to which CP’s social care needs would be met by informal care from her mother, and the level of that part of CP’s Personal Budget to be delivered via a Direct Payment.

Over the period of dispute, the local authority had repeatedly reassessed CP under the Care Act and issued new proposed care plans which increased the proposed Direct Payment from £387.50 per week via £519.70 per week to a final agreement on £720.67 per week.

Transparency of the Personal Budget

Several of the earlier care plans had failed to state a personal budget at all and none had set out any breakdown of the figure.

In line with the pre-Care Act case law (R (Savva) v Kensington & Chelsea [2010] and KM v Cambridgeshire [2011]), HHJ Wood (QC) took the view that the duty in S.26 Care Act to specify the personal budget for the adult required a transparent figure which set out how the persons’ needs could actually be met by various elements within it.

Personal budgets

“93. It is important to understand the rationale of the personal budget which is available to the individual being supported and his/her carers. It seems to me that this is clear from paragraph 11.3 of the statutory guidance. The adult with eligible needs and those providing voluntary care should have a good understanding of the extent to which support will be provided by the local authority in respect of both those services which are provided directly by specialists (and paid for by the local authority) and those which will be funded by way of direct payment. Of course, because voluntary care figures in most assessments, and it is this aspect in which the family will be interested, if the personal budget covers the total cost of meeting the eligible needs, thus including the direct payments, that element to be provided voluntarily will be easily discernible.

94. The duty is a clear one derived from section 26 of CA 2014, and any failure to provide a transparent budget in a care and support plan represents a prima facie breach of that duty which in my judgment would be susceptible to legal challenge by way of judicial review, assuming that it was otherwise uncorrected. The Claimant provides a compelling argument in respect of the earlier plans which were defective in providing this transparency.

Informal Care 

“It is also clear that an adult’s family carer is under no obligation to meet the eligible needs of the adult and necessarily any plan must be contingent on such care being withdrawn, or the local authority being made aware that the carer is not in a position to cope.” [Para. 97]

However, the judge went on to hint that, even if a carer believed that an assessment was overly reliant on informal care input there were steps which could (and maybe should) be taken short of judicial review to resolve the disagreement. (Our comment would be that perhaps the judge believed that complaints actually sometimes lead to a change in professional judgement; does anyone out there have any evidence of that, please?)

He did not say that one had to make a complaint, however, before using judicial review:

…“unlawfulness could only be identified in circumstances where there had been a refusal to review in response to a complaint, or insistence on family care in the light of clear evidence that the family was unwilling, or that there had been an irrationally low level of care identified on the assessment.” [para. 102]

In relation to what should go into a s25 Care Plan, paragraph 6.15 of the Guidance appears to have been overlooked and not specifically considered during the hearing.

Paragraph 6.15 spells out in greater detail the relationship of informal care provision to the process of assessment:

“During the assessment, local authorities must consider all of the adult’s care and support needs, regardless of any support being provided by a carer.

…Where the adult has a carer, information on the care that they are providing can be captured during assessment, but it must not influence the eligibility determination.

…After the eligibility determination has been reached, if the needs are eligible or the local authority otherwise intends to meet them, the care which a carer is providing can be taken into account during the care and support planning stage. The local authority is not required to meet any needs which are being met by a carer who is willing and able to do so, but it should record where that is the case. This ensures that the entirety of the adult’s needs are identified and the local authority can respond appropriately if the carer feels unable or unwilling to carry out some or all of the caring they were previously providing.”

The judgment should also be taken as a reminder of the need to engage in extensive ADR efforts prior to and during the process of Judicial Review (see Cowl v Plymouth City Council [2001]), especially where, as in this case, the public body appears willing to review or reassess the situation.

That said, one wonders whether such substantial increases in CP’s Direct Payment would have been forthcoming without the existence of the Judicial Review proceedings. It should also be noted that, nevertheless, Judicial Review remains the appropriate route where the claim raises a point of law of general importance or where the public body involved fails to give clear decisions and/or reasons (O.H. v London Borough of Bexley [2015]).

Full text at: CP v North East Lincs

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What to Say If: you are told that you are not able to have a direct payment …

A.   Because we are not doing them at the moment / the process is just too complicated and it will take too long

“I am sure that councils do not have the legal right to say that it just doesn’t suit them to give money out as a substitute for services.

The Care Act says that if 4 conditions are met, you must give me a direct payment. So I will need your reasons, please, in writing, as to which of the 4 you do not think I meet, so that I can address them, with the benefit of legal advice.

The Guidance (which you have to have regard to, the case law and the Care Act say so) says this:

….processes must not restrict choice or stifle innovation by requiring that the adult’s needs are met by a particular provider, and must not place undue burdens on people to provide information to the local authority.

The Guidance also says this:

Where refused, the person or person making the request should be provided with written reasons that explain the decision, and be made aware of how to appeal the decision …

So it’s obvious that you have to do that much, at least, in order to be seen to be treating me in accordance with the rules of procedural fairness for any public body.

The reasons have to be given to me in an accessible format according to the guidance, setting out:

‘which of the conditions in the Care Act have not been met, the reasons as to why they have not been met, and what the person may need to do in the future to obtain a positive decision. The consideration stage should be performed as quickly as is reasonably practicable, and the local authority must provide interim arrangements to meet care and support needs to cover the period in question.’

These are the 4 conditions you need to focus on, please:”

  • the adult has [mental] capacity to make the request, and where there is a nominated person [a helper suggested by the person seeking the direct payment], that person agrees to receive the payments
  • the local authority is not prohibited by regulations under section 33 from meeting the adult’s needs by making direct payments to the [special category of] adult or nominated person
  • the local authority is satisfied that the adult or nominated person is capable of managing direct payments, either by himself or herself, or with whatever help the authority thinks the adult or nominated person will be able to access
  • the local authority is satisfied that making direct payments to the adult or nominated person is an appropriate way to meet the needs in question

 

B.   Because we don’t think it’s an appropriate way to meet your needs…

“What exactly do you mean, please, by not appropriate? It’s a very woolly concept, and I am sure that you can’t just trot it out without explaining what you are really bothered about.

The guidance (which you are obliged to have regard to) says that ‘generally’ a direct payment should be regarded as appropriate:

  • In all cases, appropriateness is for local authorities to determine, [subject to ordinary principles of judicial review such as rationality, an evidence basis, absence of pre-determination or a fetter of discretion etc] although it is expected that in general, direct payments are an appropriate way to meet most care and support needs.
  • Direct Payments “remain the Government’s preferred mechanism for personalised care and support” and
  • Local authorities must not use this condition to arbitrarily decline a request for a direct payment. 

Also, in the well-being section of the Care Act, control is specifically mentioned:

S1(2)(d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);

  • Are you saying that there’s no point in my having a direct payment because if YOU can’t find a service I won’t be able to either?

 

  • Because if so, can I remind you that if you give me a direct payment you can actually give me permission to employ unregulated care workers, which is something YOU cannot do, or buy, as a council, and that would solve your commissioning and market management problem, would it not?

 

  • Or are you saying that it’s inappropriate because the same items or services can be bought more cheaply by you than by me, because you are a bulk purchaser?

 

  • If so, I have taken advice about that, and I have been advised that there is no legal basis in the Act or regulations for saying that cost comparisons for the same service or thing, via direct commissioning or by way of giving me a direct payment, are a legally relevant consideration to the question of appropriateness. Economic viability of a direct payment route to meeting needs is not mentioned in the legal framework for adult social care, whereas it is, in the personal HEALTH budgets framework.

 

          –    In so far as the Guidance envisages that you can take cost differentials into account, when setting the budget, that is a different matter, to appropriateness. Even then, that bit of the guidance is unsupported by any reference to primary or secondary legislation. I accept that it might make a difference to budget setting if the cost differential for the same thing via the different buying routes was massive, but not if it is simply the effect of my being an individual purchaser in the local market, whilst you are a bulk buyer.”

 

C.    Because you haven’t got sufficient mental capacity to ask for one

“What is your evidence basis for doubting my capacity? The Mental Capacity Act says that everyone should be presumed capacitated unless the contrary is established, so you can’t just assert incapacity without sharing your thinking with me/us.

The Guidance (which you have to have regard to, because the case law and Care Act say so) says this:

The following considerations should be made when assessing capacity:

  • does the person have a general understanding of what decisions they need to make and how they need to make them?
  • does the person have a general understanding of the consequences of making, or not making the decision?
  • is the person able to understand, retain, use and weigh up all relevant information to support the decision?
  • can the person communicate the decision? (this may involve the use of a specialist or independent advocate)
  • is there need to bring in additional expertise to aid the assessment?

 

My /our take on these facets of capacity is this: [explain your position carefully]… “

 

D.    Because you wouldn’t be able to manage one, day to day

“The Guidance (which you have to have regard to, because the case law and Care Act say so) says this:

‘Local authorities should therefore take all reasonable steps to provide this support to whoever may require it.

To comply with this, many local authorities have contracts with voluntary or user-led organisations that provide support and advice to direct payment holders, or to people interested in receiving direct payments.

This condition should not be used to deny a person from receiving a direct payment without consideration of support needs.

Consideration should also be given to involving a specialist assessor in determination of support requirements’

  • So, please tell me what is available locally through steps that you the council have taken to provide this support.
  • I understand too that the law allows me to nominate a relative who can be paid for their time in administering the direct payment as long as you think it’s necessary – well you seem to think it is, and I have a relatives who’s up for doing that, but it will take up at least 2 hours a week, so what shall we say per hour, please, on the footing that they’re going to be self-employed?
  • Are you saying that it’s NOT necessary and that I can’t choose to have my relative do that, simply BECAUSE you’ve spent money on commissioning or grant funding a payroll support service? Or are you saying that I can choose my relatives to help but not for money, because of your other arrangements? Can you explain, please, how that is consistent with giving me choice and control?”

 

E.   Because we don’t approve of your preferred helper

“Er, why not please? What do you have against them?

If you have some evidence basis for regarding them as not suitable to help, then you need to tell me and them, so that we can attempt to address your concerns, and in order to abide by the rules of natural justice and procedural fairness that apply to all public bodies.”

 

F.   You can’t have one, unless you use one of our preferred providers for the care services you’ll be buying

“Come off of it!

The Care Act and the Guidance both make it crystal clear that you cannot tell a direct payment holder who to spend the money on. I know that you have a power to make it a condition that the money is NOT spent on a particular person (ie a named individual or a company) but even then you’d have to explain why, to be fair to everyone concerned.

You can’t seriously think that you can stipulate as that sort of negative condition that the provider cannot be ‘anyone who is not on our framework or preferred provider list’ can you? That’s indefensibly too broad and just a cheeky way of trying to tell us who we MUST spend it on.

  • And can we ask why would you even want to be doing that? Preferred providers must be struggling anyway to meet your own demands for services, in the current climate, regarding workforce difficulties that are known to be operating nationwide.

 

  • Is it because you’ve somehow persuaded all those framework providers to agree not to charge direct payment holders any more per hour than what you’ve been able to bully them down to accepting from yourselves? How could making tendering for your business dependent on what these providers would agree to charge other people altogether for their services, ever be legally enforceable?”

 

 

 

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What to Say If: you are told “You can HAVE a direct payment, but the size of your budget for your direct payment will be calculated based on the cost for which we could meet your needs if we were buying the services.”

“…And if that’s not enough, well then, we guess that you’ll be withdrawing your request for a direct payment, yes? or else accepting the budget as less than you know is needed via a DP route, as a matter of your own choice…”

 

Anyone thinking that this is the bit of the Self Help guide that applies to them, needs to go take a wet flannel and sit down and commit to reading what follows, two or three times, using all their intellectual firepower.

It’s hard, because it has been left regrettably unclear, until someone brings a case to court about it.

The guidance says this:

11.25 The Act states the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs. In establishing the ‘cost to the local authority’, consideration should therefore be given to local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified in the budget.

To further aid the transparency principle, these cost assumptions should be shared with the person so they are aware of how their personal budget was established.

Consideration should also be given as to whether the personal budget is sufficient where needs will be met via direct payments, especially around any other costs that may be required to meet needs or ensure people are complying with legal requirements associated with becoming an employer (see chapter 12).

There may be concern that the ‘cost to the local authority’ results in the direct payment being a lesser amount than is required to purchase care and support from the local market due to local authority bulk purchasing and block contract arrangements. However, by basing the personal budget on the cost of quality local provision, this concern should be allayed.

11.26 However, a request for needs to be met via a direct payment does not mean that there is no limit on the amount attributed to the personal budget.

There may be cases where it is more appropriate to meet needs via directly-provided care and support, rather than by making a direct payment. For example, where there is no local market for a particular kind of care and support that the person wishes to use the direct payment for, except for services provided by the local authority.

It may also be the case

[ie no direct payment to be offered at all, and ONLY directly commissioned support offered in the first place, CASCAIDr would beg to be told?]

where the costs of an alternate provider arranged via a direct payment would be more than the for what the local authority would be able to arrange the same support, whilst achieving the same outcomes for the individual.

11.27 In all circumstances, consideration should be given to the expected outcomes of each potential delivery route. It may be that by raising the personal budget to allow a direct payment from a particular provider, it is expected to deliver much better outcomes than local authority delivered care and support, or there may be other dynamics such as the preferred option reducing the need for travel costs, or out of hours care.

In addition, efficiencies to the local authority (for example through an individual making their own arrangements) should also be considered.

Decisions should therefore be based on outcomes and value for money, rather than purely financially motivated.

11.28 In cases where making a direct payment is a more expensive option to meet needs, the care plan should be reviewed to ensure that it is accurate and that the personal budget allocation is correct.

[a wholly circular fudge, it seems to CASCAIDr!]

The authority should work with the person, their carer and independent advocate (if there is one) to agree on how best to meet their care and support needs.

It may be that the person can take a mixture of direct payment and local authority-arranged care and support, or the local authority can work with the person to discuss alternate uses for the personal budget.

Essentially, these discussions will take place during the planning process and local authorities should ensure that their staff are appropriately trained to support personalised care and support, and to facilitate decision-making.

 

So, what one might have to consider and/or ask, in order to get to the heart of the issue, is this:

“I get that the setting of the budget has to take account of local market rates but local market rates to YOU, the council, might logically and predictably be less than they would be to a person buying as an individual. So what are you really saying here?

  • Are you saying that my preference for having a direct payment so that I can buy services from a particular provider – who charges more than you can get the service for – is a ‘want’ and not a need?

 

  • Of course I get that if I choose to have a luxury or particularly high class quality service, then that MUST be a want and not a need, and then if I take the direct payment based on the cost of meeting my needs and not ‘wants’, then that’s down to me and I will have to make do and stretch the budget or else top up from my own or my family’s human or financial resources
  • Can I remind you though that the guidance says that councils could decide that the better outcomes that I can achieve through use of a direct payment and the council not having to commission for me, any longer, mean that the council paying out more for that route COULD WELL BE SEEN as BEST VALUE And that ‘Decisions should therefore be based on outcomes and value for money, rather than purely financially motivated.’

 

  • But honestly, there is no evidence that the provider I want, who’s offering to meet my needs as you’ve assessed them to be, for £x an hour, is going to be doing anything specially top notch or luxurious – it’s an ordinary provider who’s in business to provide services to ordinary people, which costs more than just fulfilling one large council volume-based purchase.

 

  • If I were to be getting anything special that is not part of ordinary reasonable expectations for a home care service out of this provider (like always having access to the same 2 workers, which would be lovely, but which I can’t honestly say is essential) I would agree with you that that would be down to me.

 

  • But no normal person would expect to have to go to bed at 6pm, and you are supposed to commission for a reasonable quality of service taking people’s wellbeing including their emotional and psychological wellbeing into account, in the first place.

 

  • If direct payment holders can’t choose providers like the one I have chosen, there will be no diversity in the market, which is something that you have a duty to have regard to as part of market management for the whole care market, not just the council’s commissioned for clients…

 

 

  • In so far as the Guidance hints that you can take cost differentials into account, when setting the budget, that bit of the guidance is unsupported by any reference to primary or secondary legislation.

 

  • It doesn’t actually say that you can offer it to me at the lower level, and still be acting within the legal framework for direct payments, does it? It sort of waffles (see paragraphs 11.25, 11.26, 11.27 and the Andrew example in the guidance) and begs the question when it comes to what should be done if nobody can innovatively make the money somehow stretch through negotiations….

 

  • I accept that it might make a difference to budget setting if the cost differential for the same thing via the different buying routes was going to be massive, but not if it is simply the effect of my being an individual purchaser in the local market, whilst you are a bulk buyer. It is wholly rationally predictable that a provider would charge more to an individual than to a council: the clients will be disabled and vulnerable people, not all of whom will manage their budgets perfectly, and there will be more phone calls for variations and more bad debts, in the end, for the provider.

 

  • If you stick to your position and offer me less – as a budget for this DP – less than we all know it will cost me to buy the service as a direct payment purchaser, how will you reflect that shortfall in the s25 care plan that you are obliged to give me even if I have a direct payment? How will you show that it actually meets my needs?

 

  • Are you effectively saying ‘Take it or leave it, and if you don’t want to take the budget for use as a direct payment, then that’s your choice, in the end, and that you will just crack on and meet my needs directly?’

 

  • I have been advised that that’s not a defensible approach if so, because it leaves your duty to promote my wellbeing wholly out of account – wellbeing including this notion here:

           S1(2)(d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);

 

  • Remember, the guidance says that councils could decide that the better outcomes that I can achieve through use of a direct payment and the council’s not having to commission for me any longer, mean that the council paying more for that route IS able to be seen as BEST VALUE.

 

  • And that ‘Decisions should therefore be based on outcomes and value for money, rather than purely financially motivated.’
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Local Government Ombudsman’s recent reports on issues arising around transition from children’s to adults’ services

Hertfordshire County Council (16 009 954)

 

Adult social care · Transition from children’s services · Review of Care and Support Plan · Decision date 27.9.17

 

Facts:

In this case the subject, Ms Y, was cared for by her sister, Ms X, after their mother died.

She was a young woman entitled to adult social care and was also subject to an EHCP.

While Ms Y still had an EHCP, she had transferred to adult services and this complaint was about the review processes for the care and support plan under the Care Act 2014.

Principally the complaint concerned the delay in reviewing Ms Y’s care and support package. There were various changes to the care and support package through 2015. Decisions in relation to the funding were made at a Council Panel and during 2015 there were nine occasions when the Panel considered this case. Payments through 2015 varied as there were changes in the support plan which included, for example, additional sums to pay for activities and transport.

Early in 2016 the sister stated the payments were reduced significantly. The Council stated that the reduction was likely due to the change in services provided by an agency, to the Council providing direct payments.

Ultimately in 2017 the payments were reinstated to 2015 levels, but the Ombudsman found that the information provided by the Council about the support package was confusing and it was not possible to establish the rationale for all the past payments.

The Ombudsman did not investigate complaints regarding the education part of the EHCP as Ms Y had a right of appeal to the SEND tribunal. Ms Y had appealed to the Tribunal regarding the ability of Ms X to continue to attend college for a third year.

Outcome:

Complaint upheld · Payment of £200 for avoidable distress

 

The Ombudsman’s approach

The decision sets out a summary of the Care Act 2014 provisions in relation to assessments and reviews. It references the Care and Support Statutory guidance as the decision notes that reviews must not be used to arbitrarily reduce someone’s care and support package.

The Ombudsman did find fault, as the Panel’s decisions, which were significant in terms of deciding eligibility and support, were not properly recorded and minuted. As a result, it was not always possible to understand the rationale behind decisions.

“Panel decisions, which are very significant in deciding eligibility and support, are not being properly recorded and minuted and therefore it is not possible to understand always the rationale behind decisions. This amounts to fault and the Council needs a system of recording reasons for Panel decisions. There should also be a record of the information which the Panel has considered when reaching its view.”

Comment:

This approach chimes exactly with the approach of the court to Panel maladministration in the Merton judicial review in 2017.

The Ombudsman did not make a finding as to whether the care and support plan was sufficient or not during 2016. Therefore, the agreed compensation of £200 was a limited amount purely to cover Ms X’s avoidable distress caused by the confusion about payments.

The Council stated that overall it was satisfied that it had met Ms Y and Ms X’s needs and that they had not missed out on a proper support package and the Ombudsman was satisfied with that, whereas a Court might have probed further and regarded the absence of reasoning as suggestive of irrationality, in and of itself.

 

Note

The SEN Code of Practice requires that the Local Authority must set out in Section H2 of the EHCP any adult care and support that is reasonably required by the young person’s learning difficulties or disabilities (Para 8.70).

This is also echoed in the Care and Support Statutory Guidance at Para 16.65/16.66, although it is not actually what the regulations regarding Section H2 say (focusing as they do, on children and young people….not adults):

“For people over 18 with a care and support plan, this (implicitly, what should go  into H2) will be those elements of their care and support which are directly related to their SEN….”

By the time of the Ombudsman’s decision the outstanding issue regarding Ms X’s college attendance had been resolved and the appeal to the SEND was not pursued.

Note that from 3 April 2018, for a person who is still a child/young person, a SEND tribunal hearing an appeal about the Education aspect of an EHC, will be able to make non-binding recommendations regarding the health and social care aspects of the plan.

 

 

Hertfordshire County Council (16 012 970)

 

Adult social care · Transition from children’s services · Failure in planning move from one provision to another · Interim arrangements · Agency unable to provide contracted service · Decision date 13.9.17

 

Facts:

The Ombudsman’s decision notice has a lengthy account of the difficulties faced by this family once their son, D, was unable to remain at his residential placement. The adult was 23 years of age and had severe autism, learning difficulties and challenging behaviour.  The residential home where D lived originally had given a standard 3 month notice on the placement: in effect it declined to keep him on at the care home, because of incidents with other residents. At the end of that period alternative provision had not been agreed and, following an incident, the placement was terminated with 12 days’ notice.

The family provided care at home for a lengthy period before a resolution was reached as to their son’s accommodation.

The social worker completed a care and support plan for D for his period at his parent’s home, but this was largely based on his previous residential environment, and stated that he ‘may’ need 2:1 care.

This was not actually provided, and indeed, on some days, nobody attended and nothing was done about that, causing enormous distress for all, given the extent of this man’s needs.  

When the worker was away for the first two weeks of August, the agency could not arrange cover but did not inform Mrs A until she called to ask why nobody had arrived. According to Mrs A’s records, D only had care from the agency for four days in August.

Eventually, the assessment was updated and whilst it contained most of the same information as before, it included new details about D’s behaviour following his return home. It recorded his level of need in all domains as exceptional, both alone and with his family, and had more details about how support workers should deal with aggressive episodes. According to the assessment, D was supported with a 2:1 staff ratio in the community (although this was not actually happening). It concluded that D requires full-time care on a minimum 1:1 basis, with consistent carers. The support plan did not change, despite these changes.

In the November the Council agreed to provide direct payments to Mrs A for the care she was providing to D. It paid her around £630 per week, based on 47.5 hours of care, and backdated the payments to 20 June.

The Council said that it continued to offer other services but Mrs A preferred to keep the direct payments. Mrs A refuted this and said she wanted to return to work but continued caring for D because there was no suitable alternative.

Following some incidents at home, the Council arranged for Agency Y to support D with two workers for 11 hours per day from Monday to Friday. This started in January. Mrs A’s position was that if the Council could now actually put this in place so quickly, it should have done so much earlier. The Council’s position was that Mrs A decided to pursue other options and receive the direct payments, but by December she accepted that she could no longer care for D herself; hers was that she made this decision not through choice but through lack of any apparently acceptable alternative.

The council then agreed that the agency would support D until he moved into Council accommodation.

There were housing application difficulties related to capacity to enter into a tenancy, necessitating an application to the Court of Protection, and then D assaulted Mrs A.

Ultimately the young man was placed in an out of county of residential unit that had previously been rejected by his parents due to its location away from the family home.

Outcome:

Complaint upheld · Payment of £1500 compensation

In this case the young person had transitioned to adult social care and the Ombudsman’s considerations related to the Council’s duties under the Care Act 2014.

Fault was found with the Council in relation to its planning for D’s move from residential accommodation, the lack of clarity regarding his specific support needs, the poor service from a commissioned agency, delay in arranging suitable interim provision and the Council’s response to the complaint.

The uncertainty, disruption and gaps in provision during this period caused D and his mother significant injustice.

 

The Ombudsman’s approach:

In particular, the Ombudsman focused on the duty of local authority to meet eligible needs and to review the care and support plan if there is a change in circumstances (see Care and Support Statutory Guidance, 13.18).

Further the Ombudsman emphasised that the local authority remains responsible for the quality of services provided by contracted agencies and has a duty to ensure there are sufficient good quality providers (see Care and Support Statutory Guidance, Chapter 4).

The Ombudsman considered that insufficient planning had taken place during the 3 month notice period from the original care home, but even if it had, it still might not have avoided D returning home, as an interim measure.

However, the lack of planning meant that the agency engaged to support D at home as an emergency solution was not actually capable of providing the support needed.

The Council was at fault for the lack of planning and problems with the support package.

Further when the Council did find a second agency to provide support, it was at fault for not confirming arrangements, which meant it lost the services of that agency.

The Ombudsman did not find fault for the local authority delaying updating the care and support plan until 2 months after D returned home as it gave potential providers a ‘good idea of his needs and risks’ and in view of the very special extent of his needs, the Ombudsman did not think it would have changed the outcome in approaching providers.

The Ombudsman did not find fault with the delay in making an application for independent living accommodation to the local housing authority. The delay was caused as D’s situation fell outside the current allocation’s policy and it took time for discussions which lead to D being treated as a special case.

It was further delayed when D’s parents were advised that they would need to apply to the Court of Protection as D did not have capacity to sign the tenancy agreement.

The Ombudsman’s view was that the complications were unforeseen, and the Council had worked with the family to resolve them.

Comment:

Although the complaint was upheld, compensation was recommended, and charges were returned to reflect non-delivery of services, there are a number of surprising conclusions on the part of this LGO approach.

The Council was, throughout,  under a duty to provide information and advice in relation to care and support including advice on relevant housing and housing services.

Advice could have been provided at an earlier stage regarding the ability or otherwise of D’s parents to sign any tenancy agreement on D’s behalf.

Competent legal advice could have identified that it is a moot point whether the case law (Oxford City Council) on incapacity and applications for homelessness provision, applies to joining the housing register. Given D’s needs it seems reasonable to assume that he was unlikely to have capacity to enter into to tenancy agreement well prior to leaving his original residential accommodation.

Once supported accommodation was being considered and the assault had occurred, the Council could have provided advice about how the prospects of accessing such accommodation could be brought forwards, through benign eviction by the parents.

The decision does not explore what arrangements existed between the Council and the housing authority, if any, to ensure individuals with care and support needs are able to obtain suitable living accommodation.  The Council has a duty under Section 3 of the Care Act 2014 to ensuring the maximum integration of the care and support provision with housing provision (see 3(1) and 3(5) CA14).

It is not clear how or why the Ombudsman found the level of provision available to the council for the meeting of needs that it was obliged to meet, was sufficient, or sufficient to comply with its responsibilities under Section 5 of the Care Act 2014 to ensure that there is choice of quality services in the market in services for meeting care and support needs.

The decision sets out, to a limited extent, when parents/carers may be justified in refusing a service; it is a double edged decision as is shown by the fact that the Ombudsman did not find fault during the period where Mrs A was receiving direct payments for directly providing care whilst looking for agencies that could possibly meet needs.

Here the Ombudsman found that D’s mother was justified in refusing the respite care that was offered as an interim measure to cover the gaps in provision.

What is not clear is why this was justified when refusing care from the third agency in September was not.

It is also surprising that nothing was said about the obligations of the original provider under the Human Rights Act for anyone accommodated by a council under the Care Act: such providers are legally directly liable for delivery of human rights, which ought to affect any provider’s approach to serving notice. It is not suggested that this could prevent the giving of notice, but at the very least, article 8 rights must compel conscientious alternative dispute resolution where that could conceivably help.

All in all our view was that this was a case which might have produced a successful outcome by way of a judicial review of housing and/or social services decisions or failures to MAKE decisions. Equally, it has to be remembered that a well prepared authority will win a judicial review by establishing that they were rationally optimistic with regard to the suitability of options explored. The parents may have been perceived as simply being too demanding or worse still, obstructive of agencies doing their best in difficult circumstances.

 

 

 

Durham County Council (16 012 258)

 

Adult social care · Transition from children’s services · delay in carrying out transition assessment · Gap in provision · Decision date 25.4.17

 

Facts:

Y lived at home with his mother and received outreach and respite services from children’s services.

Y had been referred to adult social services when he turned 16 and had been allocated a social worker prior to his 17th birthday.

The transition assessment only started when he was 17½. This lead to a 3-month gap in the provision of respite services.

Outcome:

Complaint upheld · Payment of £1000 compensation

 

The Ombudsman’s approach:

While the decision refers to the statutory guidance that Council must carry out a transition assessment “when there is significant benefit to the young person or carer in doing so” the decision does not actually express any view on the time that that would be.

The decision found the Council had not fettered its discretion by usually starting transition assessments when young people were 17½.

It accepted that the Council looked at individual cases although in this case the Ombudsman considered that the assessment had been started too late: allowing 6 months meant that there was a significant risk that provision would not be in place as the young person found change difficult and his current provision could not take over 18’s.

While the Council had identified a respite placement in that time Y’s mother did not consider it suitable. Mrs X’s refusal of the placements offered was reasonable, given they were intended for persons aged over 25 and Y was only just 18. 

The Ombudsman found that if the assessment had started earlier it might have been possible to start the provision that Y’s mother had found without any gap in service. Y’s mother’s reasonable refusal of the offer did not mean she was responsible for ending the respite service. It was the Council that had not continued the respite services that it assessed that Y needed – in this case by not identifying provision that could meet this need when the existing provider could not continue.

The decision does say that where a Council is unable to organise alternative provision by the time a young person reaches 18 it should maintain the existing provision until its replacement is ready. This reflects section 17(ZH) in the Children Act 1989 which states that the Council should continue providing services under Section 17 of the Children Act 1989 until a conclusion has been reached on the transition assessment. A conclusion is not considered reached until the Council begins to meet any assessed needs. The practical problem arises when, as in this case, the actual respite provision will not continue to provide a service to the young person post 18 so a new respite provider was needed regardless of which statutory regime was applied. The Care and Support Statutory Guidance makes clear at paragraph 16.53 that the transition period should be planned to ensure that there is not a sudden gap in meeting the young person’s needs.

Comment:

We are aware of other cases where CAMHS units are not contracted by NHS England to keep young persons beyond their 18th birthday – a voluntary patient or a sectioned patient is therefore at risk of this situation unless the relevant Adults’ Services or s117 teams do the necessary planning and commence it in good time.

 

Kent County Council (15 007 344)

 

Adult social care · Transition from children’s services · investigation of complaint by Council· Gap in provision · Decision date 9.2.17

 

 

Facts:

Miss B was released from a secure hospital after a year at age 17. She returned home as a temporary measure while the Council helped her secure accommodation. Miss B complained about the lack of support following her release from the secure hospital, not dealing with her complaints or providing her with information about the statutory complaints process. It was unclear whether Miss B had been advised about the statutory complaints process: the service manager indicated that Miss B had been happy with the outcome of the complaint and the Council’s records indicated that Miss B had been contacted to see if she was happy with the response to her complaint and no reply had been received.  

Outcome:

Complaint upheld

 

The Ombudsman’s approach:

The Ombudsman determined that the Council should have confirmed whether Miss B was happy with the outcome of its stage 1 response and made sure she knew her options under the statutory complaints process. This part of the Miss B’s original complaint to the Ombudsman was upheld but, as the Council had agreed to deal with the outstanding aspects of Miss B’s complaint regarding the lack of support she had received, there was no need for further investigation.

Comment:

The decision places the onus on the Council to ascertain whether the complainant is happy with the outcome of a complaint and to ensure that a complainant is aware of the statutory complaints process rather than relying on a lack of response to their enquiry.

 

Essex County Council (16 011 102)

 

Adult social care · Transition from children’s services · 7-month gap in provision · Decision date 7.2.17

 

Facts:

P was 19 years old and profoundly deaf and had learning difficulties. He turned 18 and was referred to Adult Social Care in March 2014. P attended a residential school for the deaf until December 2015 when it closed, and he returned home.

His social care assessment was updated and a request for a support package was put to the Council’s Panel. The package was not agreed as further information regarding costs was sought.

It took 7 months for the package to be agreed in which time P and his mother were without adequate levels of support which meant P’s independence skills regressed and placed strain on his mother.  

His mother complained that P had no adult social care or educational provision from the time he left the special school.

Outcome:

Complaint upheld · Payment of £2,200 compensation. It was agreed that the Council would apologise and pay £1450 to Miss N and £750 to P.

 

The Ombudsman’s approach:

The Ombudsman’s decision sets out the legal requirement that the Council must continue to provide services under the Children Act assessment until it conducts an assessment for adult social care under the Care Act.  This reflects the provision of the Children Act 1989 Section 17(ZH).

The recorded facts of the decision do not make it clear whether services were being provided under the Children Act 1989 or whether the transition to adult social care had already happened. The facts simply refer to the updating of his social care assessment. But whether or not services were being provided under the Children Act or the Care Act, the reality was that P’s placement at his residential school came to an end earlier than anticipated due to the school’s closure and so alternative provision was needed.

The social worker who updated the social care assessment recommended a package of support, but the Council Panel did not agree to this package while the costs were explored. As a result, nothing was put in place. While the Council was entitled to have considered the cost in determining how the eligible needs were met, it was not entitled to treat cost as relevant to an option not to meet the needs. Therefore, the Council should have met the eligible needs that were identified under a Care Act assessment or continued to meet the assessed needs under the Children Act (even if the type of provision needed to change).

Comment:

This approach is wholly consistent with social care legal principle.

Oddly, the decision does not deal with P’s educational provision although this was part of the original complaint.

The Ombudsman did assume that P would have stayed at school longer but for his school’s closure.

There is no reference in the decision to whether P was subject to an EHCP or could have transferred to one under the transitional arrangements under the Children and Families Act 2014.

P’s mother did accept a support package for P which was subsequently offered by the Council although it did not make provision for any remaining educational needs.

The Ombudsman considered, had P been able to stay at his school that would have given more opportunity for planning P’s transition to adult life.

Had P been subject to a statement, and then an EHCP, transition planning should have started in Year 9. The Children and Families Act guidance in recommending that transition planning should have already been started in Year 9 is not necessarily referring to the process called a transition assessment under the Care Act – one of those is an assessment against adult services criteria, after all.

Even without an EHC, however, a transition assessment should have taken place when it was of significant benefit to P, if regarded as requested.

 

 

Stockton-on-Tees Borough Council (16 004 812)

Adult social care · Transition from children’s services · Monitoring of transition plan · Delay · Decision date 6.1.17

Facts:

This young person, C, had severe autism and learning difficulties. He had a statement of SEN and attended a special school. He was able to stay at school until he was 19 (July 2015) and thereafter his mother requested he attend college from September 2015.

This request was first made at C’s Annual Review in year 9 in 2010 and transition was discussed again at the Annual Review in 2013.  

The Council converted his statement to an EHCP at the Review in February 2015. The funding for this placement was agreed at the Council’s education, health and care panel in April 2015 but then also needed to be agreed by the Council’s Children’s Multi-agency panel. This occurred in June 2015. A final EHCP was sent out in May 2015 but without naming a college. The revised EHCP named the college in July 2015 and the college confirmed his place in August 2015. This was shortly before C started at the college in September 2015.

His parents complained that his transition was inadequate and rushed, leading to him needing 6 months to settle in college and causing them distress.

Outcome:

Complaint upheld · Payment of £100 compensation

 

The Ombudsman’s approach:

The Ombudsman found fault as the Council had not consulted the college until after issuing the final EHCP. This is in breach of Section 39(2) of the Children and Families Act 2014. The Ombudsman found that had the Council consulted the college following the review in February it could have been named in the final statement issued in May. Therefore, it could have been done 2 months earlier and this caused unnecessary uncertainty and anxiety resulting in injustice.

The Ombudsman also found fault that the transition plan discussed in the Year 9 review was not monitored in later reviews.

The SEN Code of Practice 2015 required, for those attending post-16 provision in September 2015, that the EHCP must be completed by 31.5.15 (para 9.183). The Council had complied here in the sense it had issued a final EHCP but not one that had the college named. For subsequent years where there is a transition to or between post-16 institutions these should be completed by 31 March prior to September entry. For entry at other times of the year 5 months before date of entry (paras 9.180 & 9.181).

Comment:

The decision does not address whether the conversion and review in February 2015 should have been held sooner to allow consultation with the college at an earlier time nor does it set out the consequences of the failure to monitor the transition plan from 2010. The Ombudsman considered that the Council could have consulted with the college following the review in February 2015 and issued a Final EHCP by May 2015. It does not consider whether the Council would have done this, as the Council did not agree the funding for the provision until the second panel in June 2015. If the Council had named the college in a Final EHCP in May 2015 the Council would have been committed to providing that provision.

 

Buckinghamshire County Council (16 002 997)

 

Adult social care · Transition from children’s services · Failure to arrange services when young person turned 18 · Decision date 3.1.17

 

Facts:

Mr X was due to transfer from children’s services to adult services once he reached age 18 in August 2016.

He received respite care as a child and would need a new respite care placement when he became 18.

The Council started his transition process in October 2014, but it was not pursued and there was no further action until March 2016.

At that point the Council was unable to get plans in place for his transition when turned 18.

The Ombudsman stated that the Council was aware of the need to plan for Mr X almost 2 years in advance. It should have been able to ensure a new respite placement in good time.

Outcome:
Complaint upheld · Payment of £2817.50 compensation, most of which was for missed mentoring sessions and there was a sum of £250 to both Mr X and his sister for distress caused.

 

The Ombudsman’s approach:

The Ombudsman found that the Council was at fault for not arranging respite care in August 2016 but also concluded that the fault ended when the Council offered alternative placements and direct payments in September 2016.

 Mr X’s sister who cared for him would have accepted direct payments for a placement that she felt suitable. The sister did not consider the placements offered suitable for his assessed needs.

The Ombudsman declined to express a view on whether that decision was correct or not but did not find fault from September 2016 onwards.

Comment:

In other LGO decisions, a reasonable refusal of an offer has not brought the ‘fault’ to an end.

 

Nottinghamshire County Council (16 002 691)

 

Adult social care · Transition from children’s services · Agency actions following serious case review·

 

Facts:

This young person had been involved with statutory services from the aged of 12 and had increasing mental health difficulties. She became detained in several mental health settings during her adolescence and in 2013 she transferred from children’s mental health services to adult mental health services and the day after her 18th birthday she was moved to a low secure adult mental health unit. Her self-harm escalated leading to her taking her own life.

A coroner’s inquiry and serious case review found the staff did not fully realise the risk of suicide or that it was escalating. The Coroner also highlighted that a transfer to an adult unit the day after her 18th birthday was not in her best interests.

Following the serious case review that ensued, the woman’s parents complained that not enough had been done to improve health and social care services.

 

Outcome:

Decision date 30.11.16 · Complaint not upheld

 

The Ombudsman’s approach:

The Adult Serious Case Review made various recommendations in respect of the agencies that had been involved with this young person.

The Ombudsman ascertained from each what steps they had taken or were taking to respond to the recommendations of the report.

The Ombudsman’s approach was to consider what governance arrangements were in place to oversee the implementation of the recommendations and he was satisfied that such steps were in place. Therefore, the complaint about the SCR was not upheld.

The Ombudsman did not comment on the appropriateness of the recommendations nor whether they had been effective in improving health and social care services. The Ombudsman’s role is to investigate ‘maladministration’ and ‘service failure’. The quality of the work done would be subject to other inspection regimes relevant to the individual agencies.

 

Comment:

It is important to note that this is not a failed complaint in relation to the original failures in service: it was a complaint about a serious case review.

 

 

Kent County Council (16 006 992)

 

Adult social care · Transition from children’s services · Care leaver · accommodation · Decision date 29.11.16

 

Facts:

When she was a child Ms X received supported housing from the Council. To access the local housing authority discretionary housing scheme for care leavers the Council needed to send a nomination form to the local housing authority. The Council failed to do this and as a result Ms X was not able to obtain accommodation.

 

Outcome:

Complaint upheld · Compensation of £1500

 

Comment:

The Council acknowledged the error and offered £1500 in compensation but, as it was not the local housing authority, it could not provide a remedy in terms of housing.

Following an approach by the Ombudsman the local housing authority, although not at fault, helpfully agreed to include the care leaver in the housing scheme for that year.

 

Northamptonshire County Council (16 005 582)

 

Adult social care · Transition from children’s services · Adequacy of transition plan · Decision date 17.11.16

 

Facts:

The young person, Y, was provided with services under Section 17 of the Children Act as a child in need by Northamptonshire County Council and he had a child in need plan.

At 14 he was transferred to the transition team who were responsible for young people from age 14 to 25.

If there were minor changes needed to the existing core assessment and child in need plan the team would produce a new Transition Care Plan incorporating the support in the child in need plan/core assessment.

The Council did review this young person’s care plan following a complaint regarding the lack of specific detail and produced a more detailed plan.

The parents complained that something called a Transition Care Plan by the council should detail the support and provision to meet his eligible needs.

Outcome:

Complaint not upheld

 

The Ombudsman’s approach:

The Ombudsman found that certain details could be added to the plan but the absence did not result in injustice. The Ombudsman considered that it would be helpful if the Council added to the plan were the social worker’s name, the date and that the frequency of visits by the allocated worker.

Comment:

The decision does not specifically engage with whether what was wanted by the parents was a Transition Assessment under the Care Act. Rather, the report seems to accept that since the boy who was the subject of the complaint was 16, then what the council called a Transitions Care Plan was not referring to any statutory requirement under the children’s or the adults’ legal framework.

Without more information this was not an inappropriate finding, we feel.

 

 

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