Decision date: 17th July 2019
Mr P has complex physical health needs and learning difficulties. He had a Statement of Educational Need and now has an Education, Health & Care (EHC) plan. He turned 18 in August 2015 and was entitled to consideration for adults’ services under the Care Act.
In July 2016 the Council referred Mr P for an assessment by the learning disability team. It recorded that he had “multiple medical needs and a diagnosis for learning disability”.
In August 2016 they referred Mr P to its transition service. They also noted that he and Mrs B had requested a care assessment, and that he needed to be added to the Council’s ‘waiting list’.
In March 2017, the Council contacted Mrs B (Mr P’s mother). She explained she was looking for support to help Mr P access social activities, and that she would like to explore the possibility of receiving Direct Payments. However,she understoodMr P needed to have a care assessment first.
The Council gave Mrs B information about local leisure activities which might be suitable for Mr P. They also referred Mrs B for a carer assessment, and referred Mr P to a learning disability nursing team to create a Health Action Plan. It sent her an email on 22 March, confirming it had done this, and also provided Mrs B with information about a local carers’ support group.
On 3 April, the Council contacted Mrs B again. She told them she had not heard anything further about the carer’s assessment.
On 24 April 2018, a Direct Payments advisor met Mrs B who noted that Mrs B asked again about Direct Payments, and that Mr P had been waiting since May 2015 for an assessment.
On 31 October, Mrs B talked to the advisor again at a carers’ meeting. The advisor subsequently emailed a social worker, again noting the length of time Mr P had been waiting for an assessment, and that Mrs B was considering making a complaint.
At around the same time, the Council invited Mrs B to partake in its annual social care survey. Mrs B responded to the survey by criticising the Council’s failure to assess Mr P, and her inability to get a response from the Council when she raised the issue. The Council decided to treat Mrs B’s response as a complaint, even though she didn’t intend it as such.
The Council responded on 14 November.
- It confirmed the Direct Payments advisor had made an enquiry on Mrs B’s behalf, but had been “unable to provide them with the correct for information”, so they had been supposedly unable to progress the referral.
- It said a social worker, whom Mrs B had said she had tried to contact, could not recall any interaction with Mrs B.
- The Council said its transition service had only become aware of Mr P after a referral was made in 2016. But the transition service only worked with those over the age of 18 with a diagnosed learning disability, and so would have been unaware of Mr P “since he was 17”. Mr P turned 18 in 2015, therefore that was simply factually incorrect.
- It said its records showed the receipt of a referral in July 2016, and contact by a social worker in March 2017. This led to referrals to the local learning disability nursing team and the Acute Liaison nurse, as well as Mrs B being sent the information about local leisure activities.
- The Council said Mr P would be allocated for a care assessment to determine if he had eligible needs, and if so, Mrs B would be able to take support in the form of Direct Payments.
- They said they would expedite Mr P’s case.
On 23 January 2019, Mrs B complained to the Ombudsman. She said the Council had still not undertaken its assessment of Mr P.
On 21 March, the Council called Mrs B to arrange a home visit for the 28th March.
On 9 April, the Ombudsman notified the Council he intended to investigate Mr P’s complaint.
On 17 May, the Council noted it had completed the home visit to Mr P.
On 20 May, it called Mrs B and said it would complete the care assessment and post it to her by 23 May.
On 21 May, the Council noted it had completed the care assessment for Mr P.
What was found
Generally, an Ombudsman cannot accept complaints from people who have waited longer than 12 months to bring their issue to them. However in this case they decided to investigate; Mr P’s current issues could not be logically separated from the older ones, and Mrs B was told Mr P had been ‘added to the Council’s waiting list for an assessment’. The LGO therefore considered there was good reason for the delay in bringing Mr P’s complaint to the Ombudsman.
There is a duty for authorities under the Care Act, to decide what they will do when a person approaches their 18th birthday. If a person asks for a Transition Assessment the council will generally do one, giving reasons in writing if not. They may then decide to treat a transition assessment as an adult care assessment, or they may decide to undertake a new assessment when a person is an adult. Either way, authorities should make clear their decision with the person and their parents or guardians. The Council must carry out assessments over a suitable and reasonable timescale.
In its complaint response, the Council said that Mr P only became known to the transition service in 2016 and that they only work with people over 18, so were unaware of Mr P since he was 17.
The Ombudsman found that this was ‘demonstrably wrong’ on three points.
- There was no question but that Mr P had a diagnosed learning disability. The Council’s own note of 29 July 2016, just before the transition referral, said exactly that.
- Mr P was already 18, and in fact nearly 19, when the transition referral was made, not 17.
- Even if Mr P had been 17, the transition process is supposed to facilitate a smooth handover from children to adult services, avoiding a gap in the provision of care and support. For this reason, it should obviously begin well in advance of the person’s 18th birthday.
It was therefore difficult to understand why a person being 17 would mean they were not of interest to the Council’s transition service.
The Ombudsman therefore found the Council at fault for failing to properly assess Mr P’s situation, from as early as August 2015. Despite repeated contact from Mrs B, the Council made no progress whatsoever on Mr P’s assessment until November 2018, when it received Mrs B’s survey response. At that point, the direct payment advisor contacted a social worker and asked for Mr P’s case to be prioritised.
Even after the home visit was arranged (March 2019), the Ombudsman noted that it still took the Council a further two months to formally complete its assessment (May 2019). It also states “I note, and assume it is not a coincidence, this was after we informed the Council of the Ombudsman’s investigation.”
Furthermore, the Ombudsman found the Council at fault for failing to properly review Mr P’s EHC plan. EHC plans should be reviewed at least annually, to ensure any necessary amendments or updates can be incorporated. The most recent plan the Council could provide was dated August 2016. Had the Council engaged in the proper review process, it would have provided a series of opportunities for it to recognise that Mr P was still waiting for his care assessment.
In total, Mr P was waiting for an adult care assessment from August 2015 to May 2019, approximately three years and nine months. The Ombudsman described this as ‘manifestly unacceptable’. This fault led to serious injustice to both Mr P and his mother, Mrs B. Mr P missed out on a significant support provision, for a very long time, and Mrs B has been put to significant unnecessary time, trouble and frustration.
The Ombudsman said this, by way of recommendation for putting right the injustice (which approach is is consistent with the approach to restitution in the CP v NE Lincs case from the Court of Appeal in October 2019:
54. Although, at the time of writing, it is not yet in place, the Council has confirmed it has now assessed Mr P as needing 15 hours per week of support from a personal assistant.
55. I cannot say conclusively this means Mr P should have been receiving this level of support from August 2015 onwards. It is possible his needs have changed over time.
56. But it does not appear unsafe to conclude Mr P has missed out on a significant support provision, for a very long time, simply because of the Council’s failure to assess him sooner. This is a serious injustice to him.
The Council agreed to:
- offer to pay Mr P £3000, in recognition of his loss of support since August 2015;
- offer to pay Mrs B £1000, in recognition of her frustration at its failure to act on her requests to assess Mr P; and
- offer to pay Mrs B a further £500, in recognition of the significant time and trouble she has been to pursuing this matter.
- undertake a full review of its handling of Mr P’s case which should seek to identify the reason why Mr P’s assessment was subject to such a severe delay, and propose measures the Council can take to prevent a recurrence.
Points for the public and for councils:
Everything about this report smacks of an approach known as Three Conversations, in our view: a model by which councils do not follow the Care Act unless they absolutely have to – and in the name of what’s convenient and best for the service user, and their ‘choice’, most of the time, interestingly enough. We believe that that is only a choice if one knows what one is giving up, and if one has capacity to work out what the pros and cons of that choice ARE!
- There is no statutory period in which an assessment needs to be done, but the Guidance says it should be completed in a timely manner.
- Case law shows that it all depends on the facts, and the urgency, but there is no such thing as a waiting list for assessment that is based on shortage of staff: not one that is legal, anyway.
- That is to say, the Bristol ex p Penfold case in the late nineties scotched the suggestion that assessment can be rationed, because it is a duty, and not a duty where the availability of resources can be a lawful consideration. There’s a duty to ensure that all social services councils have sufficient staff for the discharge of their functions, interestingly, under the Local Authorities and Social Services Act, 1970, still in force.
- There is therefore a concept of a legitimate period that any assessment should be expected to take, taking account of the risk presented by the person’s situation, with some taking longer than that, for good reasons, and some needing to be rationally prioritised on account of urgency. Hospital discharge cases are an example of the latter. A situation where there is a willing carer who has given notice as of a particular point in time, but is still willingly continuing to care, is an example of the former kind.
- But a case involving Sutton (from the late nineties as well), involved a pre Care Act process, incomplete after 2 years three months, and the judge said that that was beyond the pale – that is, so unreasonable that no reasonable council could properly take this long.
- The LGO seems to be taking the same view, and very safely here: it is self-evidently indefensibly unconscionable to defer meeting a person’s needs for this long.
- A person remains the responsibility of Children’s Services unless and until a person receives their eligibility decision and care plan from adults’ services.
- There are no damages for breach of statutory duty under the Care Act, whether or not a person suffers harm. But there is restitution, and in the ombudsman’s terms, recommendations as to the value of the unassessed need, over a period whereby someone else will inevitably have had to step up, meaning that the council has been unjustly enriched.
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The full Local Government Ombudsman report of London Borough of Croydon’s actions can be found here