Decision Date: 30th July 2019
Mrs Y complained on behalf of her son, Mr X.
Mr X was a young adult with ‘complex care and support needs’, including epilepsy. He received support from the Council, attended a specialist school and lived at home with Mrs Y and his sister.
When Mr X was 16, he was allocated a social worker from the adult team, Ms D. In January 2018, 11 months before Mr X’s 18th birthday, Ms D visited the family home to start the transition process from children’s to adult services. She carried out a s17 Children Act child in need review, and completed a Pathway Plan.
Part of the process was to find a new ‘short break service’, because Mr X’s current provider was only registered to care for children. The LGO stated that Mrs Y had then spent ‘considerable time’ finding Placement B. It also stated that it was important to make arrangements at an early stage to allow Mr X to get used to the changes.
Placement B confirmed that it could meet Mr X’s needs, and that he would require 1:1 support.
The Council agreed to fund a number of transitional visits to Placement B between August and October 2018.
One week before Mr X’s 18th birthday in December, a panel of social work managers met (the Panel) and agreed to fund Mr X’s placement long term, but not with 1:1 supervision. They relied on information from Mr X’s previous placement, which stated that Mr X was relatively independent. The report did not state what support he received at the previous placement.
The Council said that another needs assessment was required.
Mrs Y strongly disagreed with the outcome, stating that it would be dangerous for Mr X to go to Placement B without 1:1 support.
As a result, the transition stays which were arranged for Placement B were cancelled, and Mr X could not go to his previous placement because he was now over 18. Mr X was left with no ‘short break’ provision, and Mrs Y had to cancel numerous important events including a wedding and a funeral in order to care for Mr X.
Mrs Y complained to the Council:
- The Panel’s decision was wrong. It had made a dangerous assumption about the risk of seizures without any medical input.
- His current provider’s assessment of Mr X’s continence was incorrect. They only saw him three nights per month so were not in a position to form a view.
- She said other providers could corroborate the fact Mr X often displayed challenging behaviours that could only be safely managed with 1:1 supervision.
- The Panel decision was made a week before Mr X’s 18th birthday which meant that he could not continue attending his current placement
The Council subsequently investigated further Mr X’s care needs. On 17th January 2019 Placement B told the Council that Mr X did require 1:1 support ‘at least initially’.
The Council agreed to fund 1:1 care for 8 weeks in order to assess Mr X’s needs.
The Council said it would arrange transport for Mr X to get to Placement B during term time, but during non-term times it was Mrs Y’s responsibility.
A number of ‘transition days’ were booked in for Mr X in March and April 2019 for him to settle in to Placement B.
Mrs X told the Council that she was owed nine respite overnight stays, because Mr X had been unable to attend respite care between December and March. She asked for those to be included in his support plan, and the Council said they could instead use a DP to fund a personal assistant to care for Mr X at home.
Mrs X highlighted that this was effectively pointless because she only received the benefit of Mr X’s respite care if Mr X was cared for away for home.
Although her original complaint about 1:1 supervision was upheld, Mrs Y complained to the LGO about the way Mr X’s transition was managed generally:
- The delay in finalising Mr X’s short break support which meant nothing was in place when he turned 18.
- The failure to make consistent transport arrangements
- Offering an unsuitable alternative for the lost respite care
- The uncertainty about what would happen after 8 weeks
- Ms D’s lack of proper understanding about Mr X’s care needs
What was found
The LGO stated that the transition arrangements started well, but that when the time came, there were no services put in place for Mr X. The crucial decision about long term funding did not take place until a week before Mr X’s 18th birthday. And when it did do so, it made a demonstrably indefensible decision.
The Council stated it was Mrs Y’s ‘choice’ not to send Mr X to Placement B, but the LGO did not agree. The LGO stated it was ‘entirely understandable why Mrs Y felt it was impossible for her to agree to Mr X going to placement B without 1:1 support. Her position was vindicated by the Council upholding her complaint and agreeing to put in place 1:1 to allow a further assessment of his needs to take place’.
The LGO also took the view that there were discrepancies between Ms D’s Pathway Plan and what the Council was told by the previous provider. The inconsistencies should have been identified and resolved much sooner than at the Panel meeting. If they had been, there would have been time to further consult with his current provider and Mrs Y before reaching a decision about funding.
The LGO therefore concluded that the assessment process was not done properly or in good time, and this failure amounted to fault.
The Council expected Mrs Y to use Mr X’s Motability vehicle to transport Mr X to respite care out of term time. However, the LGO highlighted that there is no legal obligation on anyone to do so, so the Council should not expect that of her.
The LGO stated that it is reasonable and sensible for the Council to discuss with a parent who drives a Motability vehicle if they are able to assist with transport, but it should not apply blanket policy decisions, and refuse to fund transport as it did in this case.
The Council also accepted that transport funding was necessary during term time, but not during the holidays. It did not give any explanation for this.
Furthermore there was no reference to transport in Mr X’s Pathway Plan.
The Council’s failure to properly consider transport to the service within the assessment process and its inconsistent approach and application of a blanket policy was fault.
‘Lost’ respite care
The Council accepted that it should make up for the lost respite care, and agreed to offer an additional 5 days at Placement B. The LGO stated that this was not sufficient. Mrs Y should have received this earlier, and it did not adequately remedy the stress, disruption and disappointment at having to miss important engagements. The LGO recommended additional remedies we will set out below.
Uncertainty about the future
The Council was not at fault for only funding 1:1 care for 8 weeks once it had changed its mind, because it was reasonable to fund the supervision whilst that aspect of the re-assessment was pending, and it was a professional judgement for the Council to make.
In its response the Council did not apologise for the late decision made about funding, the avoidable delay, and the fact Mr X was not receiving a service. There was also a failure to follow up a complaint about another matter. This inadequate response itself amounted to fault.
All in all, the LGO concluded that Mr X missed overnight respite provision for approximately three months. This caused him great anxiety and uncertainty about his future. While the Council agreed to offer additional days in future, this did not properly recognise the injustice caused to both Mr X and Mrs Y. Mrs Y’s injustice came from the loss of respite from her caring responsibilities.
The Council has agreed to:
- Apologise in writing to Mrs Y and Mr X.
- Pay £500 to Mrs Y in recognition of the avoidable break in service provision for her son that she experienced and the time and trouble she has spent dealing with this matter.
- Pay £500 to Mr X in recognition of the failure to properly prepare for his transition to adulthood and additional anxiety caused by the disruption to his short break provision.
- Make arrangements to ensure an additional five days’ respite care are booked to replace the lost respite case.
- Clarify and review its policy on transport provision to short break services. It should provide the Ombudsman with a summary of the outcome of this exercise.
- Remind all relevant social work personnel of the need to make sure transitional arrangements are put in place before the young person’s 18th birthday.
Points for the public, service users, families, advocates and councils
Para 16 of the Care and Support Guidance provides instructions to councils on how to manage transitions between children’s and adult services.
- Paragraph 16.51 says that, having carried out a transition assessment, a council must indicate which eligible needs a young person will have when they turn 18, to ensure that they understand the care and support they are likely to receive.
- Paragraph 16.53 says: It is critical that families are able to understand what support they are likely to receive when the young person or carer is in the adult system, and that the transition period is planned and managed as far in advance as is practical and useful to the individual to ensure that there is not a sudden gap in meeting the young person’s or carer’s needs.
- Paragraph 16.68 says, if adult care and support is not in place on a young person’s 18th birthday, and they have been receiving children’s services (and should be receiving adult services), a council must continue providing the existing services until the adult services are in place, so there is no gap in provision.
In this specific case the admission criteria (and sometimes the registration conditions) for a given service provider prevented continuation even if the funds should have kept on flowing, from children’s services.
To our minds, the complaint illustrates how dangerous the trend is nationwide in the notion that there can be a gap between an authorised decision-maker finding a person to be in such need as to make them eligible for intervention, and actually commissioning the response to the need, or finalising a budget tha enables that to be done.
The law is that once a need has been found to be eligible, the assessment of it is a record, and from then on, there is unmet need.
Most councils’ panels would not dream of overriding an eligibility decision but seem to think that there is no duty to fund the meeting of the need, if they think it can be done more cheaply. In fact, the law is that a panel has no scope under the Care Act for determining that the needs should not be met, and merely makes choices between more than one adequate way of meeting need; it needs to do that in a very brief time span, because the duty has already been triggered, and if it can’t it must put in an interim service at the very least.
Signing off a budget – finalising an indicative budget – is a Care Act function, in s25, and councils can give that job to whoever they like as long as they are competent – but that involves understanding that the unmet need cannot remain unmet, and that Panels do not have any lawful power to refuse funding of some sort or another by way of response.
They can say no, but they have to be able to state their reasons why, according to para 10.86 of the Guidance, and the reasoning must be transparent, rational and lawful.
Likewise any policy a council has regarding transport as an aspect of social services provision must be lawful. It can’t be a rule, and it must a defensible rationale. The LGO said this:
“There is no legal obligation on Mrs Y to transport her adult son to respite care so the Council should not expect her to do so. Nor should it apply blanket policy decisions about refusal to fund transport to adult care services.”
“But there is further confusion [CASCAIDr would expect this to be called irrationality if this had been a legal challenge] because the Council seems to have accepted that transport [to the respite service] was necessary during term time but not in the school holidays.
What possible legitimate reason could there have been for that aspect of the policy? If there’s an inability to achieve a Care Act domain, on the basis of transport, and no willing and able informal person willing to do that, and that problem is to be met by transport, there is no reason why the unrelated school’s holiday dates would have had any impact on that service being needed to meet the need.
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The full Local Government Ombudsman report of Kent County Council’s actions can be found herehttps://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-016-133