Decision date 30 July 2019
Mr and Mrs B complained (just before Mrs’s B’s son’s 18th birthday) about how the council managed a young person’s transition to adult services. The young person was referred to as Mr D and he lacked capacity to complain, so the complainants, his mother and stepfather, made the complaint on his behalf.
Mr and Mrs B complained that a lack of foresight, monitoring and planning resulted in the Council failing to provide Mr D with a suitable long-term placement past his 18th birthday. As a consequence, Mr D was still living at home which had a negative impact on Mr D and his family, including younger siblings.
The LGSCO found fault, recommended compensation but made no real points about the legal framework in which children with disabilities are entitled to services under the Chronically Sick and Disabled Persons Act (still in force for children) or the Children Act, and the extent of the duty to meet needs under the Care Act. This is puzzling because the complaint was concluded in July 2019, with events since adulthood being incorporated into the account of the facts.
Mr D turned 18 years old in August 2018. He had always had serious and profound learning disabilities, autism and epilepsy, displaying challenging behaviour and requiring constant supervision.
The Council had worked with Mr D and his family since he was a child for education and children’s services. It supported Mr D through its Children Who Are Disabled (CWAD) team which aims to provide a smooth transition for young people with disabilities from children’s to adult social care services.
In February 2016, well before Mr D was approaching adulthood, Mr and Mrs B asked the Council to refer Mr D to adult services. They hoped that early involvement would support his transition and that upon reaching 18 years old, Mr D would move into a supported living property with other people who have similar care needs – this was everybody’s preferred vision.
The Council referred Mr D to adult services in October 2016.
In March 2017, the couple asked the Council to bring Mr D’s transition plans forward, after his challenging behaviour escalated significantly and they found that the whole family was struggling to manage his needs at home.
In August 2017, they again contacted the Council. They said that they were unable to keep Mr D safe when he became distressed, due to his size and strength, and asked the Council to provide suitable accommodation for Mr D.
In October 2017, Mr D had a 5-day period where he became distressed. During this time both Mr and Mrs B and Mr D suffered injuries and there had been involvement by the police. In October, the Council accommodated Mr D in a local children’s respite unit as a temporary measure until suitable accommodation could be found. The Council were aware that Mr D would not be able to stay in the unit past his 18th birthday. He subsequently became a fully looked after child in November, after it was decided he could not return home, as Mr and Mrs B could not ensure his safety.
In July 2018, the Council identified a suitable property through a supported living provider, whom it referred to as Provider X. It planned to move Mr D into the property, with two other people he knew, and who had similar needs. The property was due to be ready to be occupied in July 2018, prior to Mr D’s 18th birthday.
Mr D remained in the respite unit. However, there were occasions when the unit became full and Mr D returned home. During these occasions Mr and Mrs B say they struggled to manage him, and on occasions were injured. No services were able to be provided IN his own home, as he could not tolerate that change of culture.
The completion of the property that the Council had planned for Mr D to move into was delayed, from July until mid-September. As this was after Mr D’s 18th birthday he was unable to stay in the respite unit, so Mr and Mrs B agreed that Mr D could return home until the property was completed.
In July, Provider X contacted the Council and said that it would be unable to provide the service for Mr D, due to staff shortages.
The Council explored other options for Mr D, contacting Provider X and another supported living provider, who was referred to as Provider Z. However, arrangements could not be finalised, due to both providers being unable to provide full staff support.
However, both providers did provide day-care support for Mr D, collecting from home in the morning and returning him in the evening.
Due to ongoing staffing concerns with Provider X, and concerns raised by Mr and Mrs B about the level of care they provided, the Council explored the possibility of using the services of two other providers.
At the end of August, the Council identified a transitional supported living service operated by Provider Z as a suitable long-term option for Mr D.
However, at the time Provider Z did not have the staffing resources to manage Mr D’s needs full time, but said they were committed to rectifying this with a view to accommodating B full time.
One week before Mr D’s 18th birthday, Mr B complained to the Council. He said that the Council had failed to properly plan and prepare for Mr D’s transition from children’s to adult services. Mr B said that rather than plan for B’s future and anticipate risks, it reacted in a knee-jerk way when things had gone wrong.
Mr B said that his lack of planning had resulted in Mr D being placed in unsuitable accommodation, often at short notice with staff unfamiliar with his complex needs. Mr B said that the temporary nature of this accommodation meant that Mr D would often have to return home when the facility was full.
Mr B said that the Council had failed to start identifying suitable accommodation for Mr D until July 2018, despite he and Mrs B informing the Council in March 2017, and again in July 2017, that B’s behaviour had deteriorated, and plans needed to be brought forward.
Mr B said that since becoming a looked after child, B had been assigned four different Independent Reporting Officers (IROs), and that the service provided by them had been poor. Mr B said that IROs had arrived late to some meetings and on one occasion did not attend at all. Mr B said the IROs had not challenged the Council regarding the accommodation arrangements or its poor planning, and had not represented Mr D’s views at meetings, with some not even meeting Mr D.
Mr B said that the uncertainty and constant changes in Mr D’s living arrangements, had caused him great distress and because of his learning disability he had struggled to understand and adapt.
Mr B said that the matter had also had a negative impact on their other children. He said that the changes in routine led Mr D to demonstrate challenging behaviour, which distressed his other children. Mr B said that when Mr D returns to the family home, due to a lack of respite care, he and Mrs B need to focus their attention on him, meaning less attention is given to their other children.
Finally, Mr B said that these matters had a negative impact on both he and Mrs B. He said that it had caused them great distress, leaving them feeling stressed and exhausted. Mr B said that this had impacted their health and his employment.
The Council itself upheld nearly all the points raised by Mr B in his complaint, accepting that it failed to adequately plan for Mr D’s transition from children’s to adult services, and that opportunities were missed by IROs to raise questions regarding Mr D’s long term plan.
The Council accepted that these errors had meant that Mr and Mrs B had to make last minute arrangements for Mr D’s care, placing stress on the family. The Council apologised for this and said that they would be implementing a number of service improvements.
The Council subsequently identified eight actions that it planned to implement, in order to prevent a similar scenario occurring. These actions included changes to policy, working practices, the implementation of a transition tracker and staff training.
Since Mr B’s original complaint the Council had drawn up action plans for Mr D. In October 2018, a plan was agreed which comprised of a mixture of schooling, after school care and weekend transitional supported living service, supplied by Provider Z, with Mr D staying at the family home overnight six days a week.
In January 2019, Mr and Mrs B met with the Council to discuss concerns that Provider Z were unable to meet needs and its failure to provide regular respite support at the weekends.
Following this meeting the Council created ‘an action plan’ for Mr D’s care and a further ‘action plan’ was created and agreed.
The Council have said that they ‘are working’ to find suitable accommodation for Mr D and have created an ongoing plan which details how it will provide care before and after suitable accommodation is found.
The Ombudsman found there was fault. The Council could have started making arrangements sooner and had it done so, it may have been possible for the Council to have found a suitable full-time accommodation for Mr D. It had clearly been very difficult to find residential accommodation or support agencies that could meet Mr D’s needs.
The key problem appears to have been determining the right option for Mr D and identifying providers who had the capacity to meet Mr D’s needs. This had led to a significant amount of disruption to Mr D which had not only impacted him, but also caused distress to his parents and their other children. This is fault.
The Council acknowledged this fault, and offered an apology to Mr and Mrs B, have introduced a number of service improvements, and have worked to produce a long-term support plan for Mr D. However, having considered the matters raised in this case the Ombudsman considered that it would have also been appropriate to offer a financial remedy to the family.
The Council agreed that within one month of the date of the Ombudsman’s final decision, it would offer to pay Mr and Mrs B, Mr D and their other two children a total of £2,650 for their avoidable distress in this case.
The Ombudsman concluded his investigation with a finding of fault causing an injustice.
Points for the public and for councils
- The Care Act 2014 places a duty on local authorities to conduct transition assessments for children, children’s carers and young carers where there is a likely need for care and support after the child in question turns 18 and a transition assessment would be of ‘significant benefit’. Since children’s services are usually generous – more generous in relation to meeting needs than are adult services these days, it is difficult to imagine it turning out well for any family, to hurry up the march towards the cliff edge, but there we go.
- Housing is not often a social care service, in the sense of being something that has to be PROVIDED, FUNDED, or even found, by social services, people should be warned. Everyone needs a house, the argument goes, and that’s not on account of a need for care and support arising from mental or physical illness, conditions, or disorders. Also, duties, when owed under the Housing Act, trump the Care Act duties, by law.
- When a council is under a duty it means it is something the council MUST do, it is not optional – so for instance, it can give reasons as to its view on significant benefit associated with a transition assessment, but not simply fail to act, or fail to meet needs that emerge from that process or during that process.
- In this case Mr D’s parents alerted the local authority to their son’s transition from children’s services to adult services and his need for accommodation in February 2016 and the council referred him to adult services in October 2016, some eight months later.
- For young people with a child in need plan, an education, health and care plan or a care and support plan, local authorities must carry out a review, as set out in the Children Act 1989, the Children and Families Act 2014 and the Care Act 2014. Mr D was undoubtenly a child in need.
- When commissioning and planning services the Local Authority must encourage and support a variety of different providers and types of services to ensure that there is sufficient choice for people regardless of their Care and Support/Support needs, geographical location or method of arrangement (including whether services are Local Authority commissioned, arranged by the person through a Direct Payment or whether the person is self- funding).
- There’s no absolute duty to procure or secure anything in particular, but there doesn’t need to be, because the duty to meet eligible assessed needs, and to meet them appropriately, IS a duty, under the Care Act for adults, at least, and enforceable by individuals, if they can access legal advice.
- Duties towards children who are children in need because of disabilities are different in nature, in legal terms, it is widely thought, because of the backdrop of public authorities having the power to take care proceedings and take over aspects of parental responsibility where a child is beyond the control of his or her parents. But not for a 17 year old. So there is a gap in entitlement there, quite possibly, if the Chronically Sick and Disabled Persons Act provides for a duty for those needing care AT home, but the s17 duty does not.
The different types of service provision that the Local Authority must ensure this nebulous extent of ‘choice’ exists within, under the Care Act – meaning that no children’s services or transition team should ever find themselves in the position that Dorset had to confess to, are as follows:
- Support services and universal services that promote prevention;
- Domiciliary care;
- Care homes and nursing homes;
- Live-In Care services;
- Specialist care for people with complex needs or multiple needs;
- Reablement services;
- Supported Living and Extra Care;
- Shared Lives services and any other housing options;
- Community support;
- Social Work;
- Information, brokerage, advocacy and advice services; and
- Direct Payment support organisations.
- Since 2007 there has been a duty on the Local Authority, through health and wellbeing boards to undertake Joint Strategic Needs Assessments (JSNA) with the local Clinical Commissioning Group (CCG). This is a process that maps the needs and demand for health and social care support in the area.
- Councils must carry out a gap analysis to identify and respond to the needs of young people who have been receiving support from children’s services. The gap analysis should inform local planning and commissioning of services.
When carrying out the gap analysis they should:
- take into account resources already available in primary care practices
- include young people who don’t meet eligibility criteria for support from adults’ services and those for whom services are not available for another reason
- pay particular attention to young people:
- with neurodevelopmental disorders
- with cerebral palsy
- with challenging behaviour, or
- who are being supported with palliative care.
- statutory guidance for Local Authorities and NHS organisations to support implementation of the Adult Autism Strategy says that young people with autism, whether they have an EHC plans or not, can expect to be helped with their transition from school or college to adulthood.
- local authorities have duties under the Children and Families Act 2014 at the annual reviews of a child’s EHC plan from Year 9 (age 13 to 14) onwards to consider what provision is required to help the child or young person in preparation for adulthood and independent living. Indeed, the expectation is that consideration of preparation for adulthood should begin right from the earliest point that special educational needs are identified.
CASCAIDr’s view is that there were unavoidable legal duties upon this local authority to carry out transition planning early, and target duties to consider the needs of its population through Joint Strategic needs analysis and to ensure commissioning was person-centred. The Adult Autism Strategy repeats those duties for children and young people who have autism.
So the legislation and guidance was already in place to ensure that Mr D was assessed to identify his needs and then supported to access the accommodation which he or his best interests consultees preferred, even if it was not to be purchased, rented, secured, procured or let to him by the council itself.
Regardless of this fact the Ombudsman did not focus on these duties and, instead, looked at how the council had just used its ‘best endeavours’ to assist Mr D to find accommodation with a suitable support package to meet his needs.
That would be understandable if Mr D had been a sectioned patient and entitled only to s117 care planning for his mental health aftercare needs, but a duty under the Care Act is an absolute duty in this sense: if there is only one way regarded as able, therapeutically appropriately, to meet it, the cost is irrelevant, in legal terms, because a duty is a duty.
Mr B said that the Council had failed to start identifying suitable accommodation for Mr D until July 2018, despite he and Mrs B informing the Council in March 2017, and again in July 2017, that B’s behaviour had deteriorated, and plans needed to be brought forward. Once Mr D could no longer be accommodated safely at home he could have been considered homeless even as a 16 or 17 year old, and then the district council would have had a duty to accommodate (secure him stable accommodation) under Part VII of the Act, through the council taking on the tenancy in trust for him as a licensee, or in conjunction with deputyship to provide authorisation for a relative to make the application (see WB’s case explained below.) This should have been explained to Mr D and his parents and options offered to them.
In WB v W District Council  EWCA Civ 928 (Court of Appeal (Arden, Lewison and Asplin LJJ) it was held that a deputy may be given power to make an application under HA 96 Part VII, including power to make the various choices that an applicant may be required to make, thereby getting over the problem that it had been previously been thought that not even the existence of a deputy could solve the problem that case law had held for some years that a person severely lacking in capacity cannot make a homelessness application.)
CASCAIDr thinks all this should have been in the LGO’s purview as well, making this a much more serious case of the council have overlooked other options just through ignorance. If accommodation on his own with care going in could not be secured, then it might well have been recognised that it was an adult services duty to accommodate as part and parcel of adult social care, in connection with which, guarantees and indemnities can lawfully be provided by councils.
In 2018, the Homelessness Reduction Act came into force. Under this legislation, local authorities and other government bodies have a legally-binding duty to provide a wider range of services to people at risk of homelessness. The Act included a new ‘duty to refer’ – public services need to notify a local authority if they come into contact with someone they think may be homeless or at risk of becoming homeless.
The Independent Reviewing Officer’s role is to quality assure the care planning and review process for each child and to ensure that his/her current wishes and feelings are given full consideration. The various IROs allocated do not appear to have done this and on one occasion the IRO did not even meet with Mr D. The Ombudsman has not commented very much on these serious failings either, for reasons perhaps to do with the scope of its own jurisdiction.
CASCAIDr’s view of what could be said to be unlawful about this situation
a) It is not the duty of a social services authority actually to provide unregistered accommodation in the vast majority of cases, nor any other agency’s responsibility in the case of a person who lacks capacity even to understand a tenancy for the purposes of Part VII of the Housing Act if unrepresented by a deputy. Therefore every child in need or accommodated child who will need housing after they are 18 needs to be supported through deputyship or at least proper advice and information for their relatives to avoid falling into the trap of nothing being organised in time.
b) residential care in a care home, if defensibly suitable and appropriate in relation to the particular setting, would be a lawful option and indeed sometimes the only option that is practicable in view of the presenting behaviours, for some young adults. In these cases, the adult services team of the liable council needs to know how to do the necessary balancing of all relevant considerations, explicitly and transparently, with regard to cost comparisons, human rights considerations, wishes and feelings and the views of the parents and soon to be best interests consultees of the young person approaching adulthood if it expects to make a lawful offer that does not end up in judicial review;
c) social services councils are allowed to take their resources into account in relation to how they meet needs under the Care Act, including needs for accommodation, but not whether they do so;
d) councils are not allowed to delay unconscionably without finalising a care plan – and a care plan must address a social care need for accommodation, when it is such a pressing need that no reasonable authority could avoid acknowledging it as necessary and it is not trumped by the Housing Act; and where that is the case, action must be taken to secure that accommodation by rent or purchase for placement or onward letting, to the individual, for the discharge of the statutory duty to the person with the eligible assessed need;
e) any offer for meeting needs must be structured in a way that is within the council’s statutory powers, and it is not honest to mislead the majority of parents of young adults with challenging behaviour into thinking that the role taken by local authority social services departments with regard to supported living settings is FINDING, PROVIDING OR SECURING accommodation – when all that the social care team does in relation to accessing supported living is to tell the client and his family that there is ‘nothing suitable’ for him to rent. ‘Nothing suitabl’e is a construct and a euphemism for no known vacancy in a current service, or no room in a house where there are compatible others, or no provider willing and actually able to take the person on for the price that the council wishes to pay, in our view, but a duty is a duty, in adults services law.
f) a social services council cannot defer meeting an eligible person’s needs on the footing that there is nothing suitable for him to rent. They have a power to accommodate which is unconstrained by references to registration as a care home, and Localism Act powers to supply any want of authority for getting round other legal issues that do exist when a person needs personal care in the place where he is going to live in order that his needs be met;
e) the meeting of needs in the interim is not a discretion, even in a case where a parent or client is willing to wait because of the benefits of an alternative route into housing. The duty is still to provide adequate interim provision in the meantime, no matter what the cost, and the same applies if something special that the council has lawful power to contract for, does have to be specially arranged, pump-primed, or simply bought;
f) whilst there is currently no clear action in negligence for foreseeable harm arising from a breach of the duty to meet need, and no clear common law parallel action in negligence, all that is needed to move the law on, we suspect, is a shocking enough case on the facts to make the English Courts think again about these nuanced distinctions regarding operational and resources-based decision-making functions; one where harm has been allowed to befall younger siblings through abject failure to abide by the legal framework and misinformation to those who have to make decisions for ALL their children, is not a bad place to start if one wants to get behind a test case.
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Here is a link to the Ombudsman’s Report:-