Ombudsman’s decision date: 17/04/19
Mrs F’s son, X, is an adult with autism and learning difficulties. X had already been given an Education, Health and Care plan (EHC) by Hillingdon Council.
A child or young person aged 19 to 25 with special educational needs (SEN) is entitled to such a Plan and it sets out the young person’s needs and what arrangements should be made to meet them. The Education Authority is responsible for making sure that all the educational arrangements specified in the EHC plan are put in place. Parents may appeal to the SEND Tribunal against the educational provision specified in an EHC plan, including the named placement.
Mrs F herself had and has health problems which require hospital appointments.
In December 2015 Mrs F had appealed to the SEND Tribunal to obtain the naming of ‘School 1’ in X’s EHC plan. In January 2017 the Tribunal upheld Mrs F’s appeal. Its decision said Mrs F “had agreed to pay for transport to and from School 1”.
In June 2017 however, Mrs F asked the Council to assess X’s care and support needs, which task was completed by a social worker on 12th September 2017. It found that X needed support to access the community at weekends and during school holidays but it failed to specify how many hours were needed.
The assessment also gave an indicative amount of the cost of X’s care but did not include a personal budget. A financial assessment was completed in July 2017 which found X was receiving benefits and had no savings. Even after this assessment was completed, the Council did not produce a care and support plan. There was no question but that a care plan was obliged to be put in place under the Care Act.
In addition the 2017 assessment found X needed support to travel to School 1, which was 60 miles from his home. Mrs F was driving X to school as agreed; however as her health had deteriorated, it was hard to drive and manage hospital appointments and she had therefore applied for travel assistance from the Council’s school transport team.
With regard to the care arrangements for X, Mrs F had admittedly taken time to make arrangements for a family friend to provide support hours as a personal assistant (to be paid for by direct payments). In November 2017 the council asked Mrs F to confirm the arrangements she had made in finding X a personal assistant. Mrs F’s original intended PA had told her he was unable to commit to the role, but by the 24th of November Mrs F told the Council she had found an alternative person. The social worker agreed to send X’s care and support plan to the direct payments team. However the LGO found there was no evidence it was done.
And despite the social worker passing on information about Mrs F’s own health problems, the Ombudsman found there was no evidence that an alternative package of care was considered whilst Mrs F was liaising with potential personal assistants.
Some or other part of the Council told Mrs F on 25 September 2017 that X was not eligible for school travel assistance as “the tribunal decision was to allow the placement as long as the parents provided transport”.
The social care side of the matter was transferred to a new social worker in December 2017, who started arranging a home visit. Hillingdon Council said “a re-assessment was felt to be appropriate given the amount of time that had passed from the initial assessment.” Regarding this assertion, the LGO could see no evidence that X’s needs or circumstances had changed in a way that would have affected that assessment and found that it was ‘fault’ for the Council to delay developing a care plan based on the original 2017 needs assessment.
The new social worker visited on 2 January 2018. The new social worker advised Mrs F that school transport could not be provided by social care and she should apply to the school transport team.
The social worker agreed to arrange a direct payment to enable X to access the community at weekends and in school holidays. Again, the LGO found there was no evidence this was actually done.
After this visit, a new EHC plan was issued. The new plan was not updated to reflect X’s social care needs identified in the September 2017 assessment.
Mrs F complained to the Council in February 2018 that the direct payments agreed in September 2017 had not yet been set up, to which the Council responded in March 2018, accepting there had been a delay and that the direct payment would be “progressed without any further delay”.
After this a telephone review was carried out presumably because nobody had ever identified what was actually needed in terms of amount. It found that X required 10 hours of support a week (for access to the community), and Mrs F required 6 nights a year of support (respite for X from being cared for by Mrs F).
Again, the Ombudsman saw no evidence that a care and support plan was produced. Neither was a personal budget organised.
The Council said the direct payments could not be put in place as a complete financial assessment had not been undertaken. They said that they had been attempting to make home visits (which were cancelled as Mrs F was taking X to School 1), and were also awaiting documents from Mrs F.
However, there was still no interim care and support provided to X whilst the Council waited for that information.
On the 25th July 2018 the Council told Mrs F that she was responsible for the full cost of X’s care until the financial assessment was completed. This time however it offered an interim care package. But even this never came to fruition as the Council said it could not make contact with Mrs F. Again, the case was transferred to a new social worker.
Mrs F complained to the Council in October 2018. She stated that because she was still left responsible for driving X to school, her health had deteriorated and she had been discharged from three NHS clinics because she had been unable to attend follow up appointments.
On the 1st of November 2018 the financial assessment was completed. X’s assessed contribution was £47.11 per week. On the 14th of November a home visit was arranged to prepare a care and support plan, which included support consisting of 5 hours support term-time for 38 weeks and 10 hours support per week non-term time for 14 weeks.
The Council also offered Mrs F a support package. Mrs F refused these packages (as they did not offer enough flexibility) and again requested direct payments.
Another financial assessment started in February 2019; however the Council told the LGSCO that they are still waiting for necessary documents. X is therefore still without support.
What the Ombudsman decided
The LGO found that after the September 2017 assessment, which concluded X had eligible needs requiring support, the Council should have produced a care and support plan setting out how this support would be provided. There was no evidence a care and support plan was ever produced to set out how this support would be provided or what his personal budget was. Failing to do so conflicted with the Care Act 2014, showing the Council was at fault.
The Council had suggested that a care and support plan would only have been an administrative exercise because no service (or direct payment) was being provided whilst he was believed to be a full cost payer, no financial assessment having been formally completed.
As far as the LGO was concerned, the Care Act says councils must produce a care and support plan in response to eligible needs and therefore found fault. And as the LGO pointed out, the Guidance says councils should act promptly to meet people’s needs. A completed financial assessment is not required before support its put in pace. The Council should have paid the direct payments and re-claimed them later, if X was found to be a full cost payer.
The LGO found that access to education may well be a social care need. Once the Council knew its colleagues from education had decided that X was not eligible for school transport, the social care team should have considered how X would access education on the days Mrs F had hospital appointments. It should have considered how X would access education on the days Mrs F had hospital appointments. It should have considered whether a personal assistant could have been used to take X to School 1 on those days. So X’s needs were not properly considered in a care and support plan and this was fault.
Further fault was shown in the delays in processing direct payments, and failing to put in place interim arrangements whilst awaiting financial assessment. The Guidance says councils must provide interim arrangements to meet care and support needs whilst direct payments are being arranged. Interim arrangements were not offered until July 2018. This was fault.
This all meant that both X and Mrs F were without support between October 2017 and November 2018. Mrs F’s health suffered as a result, and there was (and still is) no arrangement for X’s access to education if Mrs F cannot drive him.
The LGSCO recommended that Hillingdon pay X £500 to acknowledge the distress caused by failing to meet his eligible needs for over a year and to pay Mrs F £750 to acknowledge the impact on her of its failing to meet X’s needs. The council agreed to apologise to Mrs F and X and also to consider how X will access education when Mrs F is unable to take him to School 1.
Points for practitioners and service users/carers/advocates to reflect upon:
The Care Act contains duties, which have to be discharged, even if a council is short staffed and taking a light touch or ‘Conversations’ approach to statutory functions.
- Is the council stretching out assessment and care planning beyond a reasonable time? There are no time frames IN the Care Act but public law principles and the Guidance says it should all be done in a timely manner.
- Is the council putting Care Planning on ice until financial assessment is completed? This is not acceptable in the face of eligible assessed unmet needs: the production of a care plan does not depend on a completed financial assessment. Services can and should be provided in the interim and reclaims of any excessive amounts paid over net of eventual charges, reclaimed. Meeting the needs is the essential task imposed on the council.
- Is the council putting Care Planning on ice where it is thought that a person’s charge would wipe out the value of an indicative budget? That is common, and the wrong way around because an indicative budget decides nothing; it is merely an estimate using averages and scored profiles of need, and cannot be regarded as the end of the process; care planning is needs led, and the indicative budget is just there as a sense check.
- Is the council batting backwards and forwards elements of need between departments – eg children’s and education teams, or even that of the health service? Just because one body or one internal department won’t pay for something does not mean that the distinction between functions is concrete: there are many services and responses that overlap as between the statutory functions of the education authority, children’s services, adults’ services and the health service. The LGO is clear that there is no list of services that ‘aren’t’ or ‘can’t’ be social care services and ultimately that is a matter of law for a court to decide in a given case.
If you need help with the use of law and legal principle in relation to issues such as these, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.
The full Local Government Ombudsman report into Hillingdon’s fault can be found at https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/17-016-412