Lewisham Council not at fault for not allowing a person to travel abroad

Decision Date: 3rd January 2020

What Happened

Mr Y had severe learning difficulties and challenging behaviour. He received support from specialist teams to manage his needs.

Ms X, his mother, asked the Council for permission to take him abroad to visit his grandmother.

The Council refused this request due to the severity of Mr Y’s condition.

Ms X complained, so the Council undertook an investigation. It took into account how Ms X said she could keep him occupied on an airplane, it carried out a mental capacity test and held a best interests meeting.

The professionals involved confirmed the Council’s decision that it would not be safe or reasonable for Mr Y to undertake such a trip.

What was found

The LGO stated that although it was understandably disappointing for Mr Y and Ms X, there was no evidence of fault in the Council’s decision, or the way it came to it.

There was no evidence to suggest Mr Y has been discriminated against.

The Council followed advice from the professionals involved in his care, as to what was considered safe for him to do.

As there was no evidence of fault, the LGO declined to investigate this complaint any further.

Points for the public, service users, family members, councils

We think that this report needs a bit of unpicking, which is hard because it is so short, the investigation having been curtailed.

A family that is accommodating a person who is living with them, or one who is living independently but having services paid for, does not need permission to take a family member abroad. The council is not the boss of a family; a family acts under the Mental Capacity Act just as much as the Council, in terms of needing a justification for transporting a person physically, without consent, if the person lacks capacity to make the decision to say yes please, get me on to that aeroplane. That ought to have been made clear in the report.

However, if a family is asking for permission to use monies provided via a direct payment for someone’s care, on the cost of a plane ticket, to get someone to somewhere where they may need more or less care, then of course then the council has a role to play, because it is funding the care! The Authorised Person holding the budget has a management role but needs to spend it on meeting the assessed needs, not on holidays. A respite budget might well be used, but these are complex questions.

In this case, it is not even clear HOW the man was cared for but his condition was severe enough for the LGO investigator to say that he was in the care of the council – which implies that he had been placed in a residential or even a nursing setting – and that effectively the family were asking to take back control of his care, and take him on a trip.

If that was the setting of course the current provider would have had an empty placement, for an unspecified length of time, and could not have been required to keep it open.

Additionally the current provider would have been a best interests consultee if the man lacked capacity on the issue of whether he could possibly expect to gain a sufficiently great benefit such as to outweigh the risks inherent in the journey being proposed to make it a good idea.

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The full Local Government Ombudsman report of London Borough of Lewisham’s actions can be found here