Decision date – 24/09/2019
Miss Y is a lady with significant care needs arising from her multiple health conditions. She has a life-limiting illness and also has epilepsy and learning disabilities.
This complaint concerned Miss Y and her main carers Mr and Mrs X and the process of transition from Children’s services to Adults’ Services.
Her care package consisted of 13 hours’ support per week provided through a direct payment. She also had a draft Education Health and Care plan (EHCP).
In June 2017, the Council reviewed Miss Y’s draft EHC without identifying a transition social worker, and did not consider Miss Y’s care needs. Miss Y’s care needs had not been reviewed since 2014, in fact.
In October 2017 Officer A was allocated to carry out a child’s needs assessment. The report suggests that Miss Y was due to turn 18 in November 2017 and finds that this child’s needs assessment was completed after she became 18.
The assessment identified she would need care and support beyond 18.
Mr and Mrs X complained that this ought to have been an adult’s assessment to which the Council responded that Mr and Mrs X had been informed they could request an adult assessment at the time. The facts as to that issue were unresolved.
Officer A referred Miss Y to the Clinical Commissioning Group (CCG) for a Continuing Healthcare (CHC) assessment at this point. The CCG did not progress this and nobody followed that up, it seems.
Officer B became involved for care planning based on an indicative budget generated by a Resource Allocation System (RAS).
Mr and Mrs X did not agree that this budget was sufficient to meet Miss Y’s needs. There was no evidence that a care plan was ever produced or that the Council considered what care package would actually meet Miss Y’s needs.
In July 2018, the Council produced a care plan for the summer holidays. Mrs X complained that this was produced too late in the term and included activities that were unsuitable for Miss Y.
In October 2018, Officer C was allocated as Miss Y’s social worker and recommended a personal budget of 85 hours per week for Miss Y plus 15 hours’ commissioned nurse services and 36 nights of respite per year.
Miss Y was again referred to the CCG for an assessment for CHC funding. The CCG decided Miss Y was eligible for CHC funding in December 2018. A proper care package commenced in January 2019, but this meant that between November 2017 and Jan 2019, she had been potentially underfunded and gone without services.
Stopped Direct Payments
In 2018, direct payments were stopped three times by the Council which it stated was due to the children’s and adults’ direct payment systems not being aligned. This resulted in Mrs X being unable to pay carers twice and a fine from the HMRC.
Mrs X encountered difficulties sourcing Employer’s Liability insurance as insurers requested confirmation that carers had received appropriate training from a medical professional to carry out administration of medication and other procedures. The Council needed to fund or provide this training and had ultimately agreed to do so; the LGO could not understand why this had not been done a long time sooner once the issue was raised.
In November 2018 Mrs X informed them that the resulting lack of support was having a significant impact on her and her family’s wellbeing. The Council did not progress the medical procedures training until April 2019 despite having informed direct payment recipients by newsletter that carers may require training to satisfy insurance requirements.
Mr and Mrs X requested carers’ assessments in June 2017. Despite a commitment by the Council to complete these in August 2018, they were not undertaken until re-prompted by the LGSCO in April 2019.
The Council had issued a final EHC plan in February 2017 which Mr and Mrs X disagreed with as it was based on out of date information.
The Council committed to review this in June 2017 and issued an amended plan in March 2018. Council records showed that Officer C attended an EHC review in December 2018 and alerted the special needs co-ordinator, who had failed to attend, that Miss Y would need an appropriate post-19 education provision.
A fresh draft EHC plan was sent for Mr and Mrs X to comment on in April 2019 and the Council has not even yet finalised this plan.
In April 2018 Mrs X complained to the Council about the lack of transition and care planning, the failure to carry out carers’ assessments and the insurance difficulties. The Council did not uphold this complaint for unexplained reasons and did not seek to address the insurance issue or carry out carers’ assessments.
Mrs X complained in May 2018 about the direct payments stopping. The Council failed to respond to that complaint.
In June 2018 Mrs X made a further complaint. The Council agreed to arrange carers’ assessments and asserted that the insurance issue was resolved. It also advised that it was ‘awaiting approval’ of the package of care.
Mrs X complained again about the same thing but the Council did not respond. It said it had taken the matter as already resolved.
In November 2018, the Council wrongly informed her that she had completed stage one of the Children’s complaints procedure – wrongly because it appertained to Adult Social Care.
What was found
The LGSCO found the Council at fault for failing to consider the right timing for a transitions assessment and to carry this out when requested by Mr and Mrs X in 2017 when their daughter was still 17. That is a statutory duty.
The Council was also found at fault for deciding to undertake several Child’s needs assessments because it had failed to review Miss Y’s care needs since 2014. By the time a review occurred, Miss Y was an adult. The assessment did identify Miss Y had eligible care needs, which minimised the consequence of the Council’s process failings.
The LGSCO found the Council more significantly at fault for failing to carry out the care planning and provide a care package to meet her needs. This included the failure to provide a suitable care package throughout the summer holidays.
Officer C recommended a package of care for Miss Y which the LGSCO deemed that the Council would have been obliged to provide from her 18th birthday had it carried out the required transitions assessment and subsequent care planning.
Whilst the Council was not at fault for the failing of the CCG to progress the initial CHC referral, it was found at fault for failing to meet Miss Y’s care and support needs pending the outcome.
The Council was found at fault for stopping the direct payments which meant that Mrs X was unable to pay carers between March and May 2018. The LGSCO considered this to be significant delay in putting right their own system alignment errors.
Whilst the Council did not provide an explanation for failing to provide relevant information to its direct payment recipients, the LGSCO found that it should have been aware of the issue regarding training for carers delivering medical interventions prior to Mrs X raising it.
The LGSCO found the Council at fault for failing to progress the training. It did attempt to source the training but was unable to do so for unexplained reasons and then did not pursue the request for many months.
The Council was at fault for failing to carry out the carers’ assessments despite the complaints made by Mrs X.
The Council was correct in dealing with Mrs X’s complaint as an Adult Social Care complaint. The LGSCO took issue with the content of its response. It failed to address the issues of the carers’ assessments, insurance and transition planning. The Council failed to write to Mrs X in August 2018 to confirm the resolution of her complaint. In November 2018 it was also wrong to inform Mrs X that her complaint had been considered under the Children’s complaints procedure.
The LGSCO considered the injustice to Mr and Mrs X and Miss Y which resulted from the Council’s failings. It determined that the delay with the transition assessment and care planning had led to significant injustice.
Miss Y turned 18 in November 2017 and from that date, the LGSCO identified that the Council should have provided the increased package of care. Instead it continued to provide an insufficient care package until January 2019. The impact for Mr and Mrs X was significant as they were unable to plan work, annual leave and time away from caring as insufficient respite was available. This caused them significant distress. Miss Y also missed out on being able to access respite.
Whilst Miss Y did not miss out because the EHC plan was not finalised, the LGSCO recognised that Mr and Mrs X experienced significant uncertainty about her future education.
The Council’s failings in relation to the liability insurance were also found to have caused Mr and Mrs X significant injustice. They had to cover carer shortages whilst uninsured and had to spend time pursuing the Council to address the matter. Mr and Mrs X also had to spend time pursuing the Council in relation to the stopped direct payments which caused them distress. Its unexplained failure to respond only added to their distress and frustration.
The LGSCO made several recommendations that the Council should:
- Within one month issue a written apology to Mr and Mrs X and pay £10,000 to acknowledge the significant distress caused by its failure properly to plan Miss Y’s transition from children’s to adult care services and the 13 month delay in providing an adequate care package and delay in carrying out a carers’ assessment. The apology should also cover the key areas of its failings.
- Also within one month send a written apology to Miss Y and pay her £1000 to acknowledge the failure to provide adequate respite care and the uncertainty caused by its failure to issue a final EHC plan following the annual review of July 2018.
- Issue a final EHC plan for Miss Y within two months of the LGSCO’s final decision.
- Review its transition assessments to ensure officers actively consider and evidence their decision on when they consider it is of benefit to the young person to start the transition assessment. This should include timelines to highlight any potential delays.
- Reviews its EHC plan procedures to ensure it starts transition planning in year 9 for children with assessed care needs and includes a timescale for issuing final EHC plans to ensure the delays experienced in this case do not recur. The process reviews required should be a joint review with Social Care and SEN departments and take place within three months of the LGSCO decision.
- The Council should also explain to the Ombudsman how it has improved its practice.
Points for the public, service users, transitioning young people, family and peer supporters, advocates, and councils etc.
This report gives the impression of a council team in disarray, completely disconnected from the legal framework governing the rights of its clients. It failed Miss Y and her parent carers significantly, although this has led to another useful example of a hefty recommended award by way of remedy, alongside apologies and changes to practice.
One of the causes of distress raised in this complaint was that of the Employer’s Liability insurance for direct payment holders. Many such people will be managing care and support arrangements for people with complex needs who require medically trained support staff – it is not unlawful to fund input from carers with specific skills, unless the tasks amount to registered nurse nursing. A person who is trained by a nurse to do something can be competent then to do it and it is not uncommon for insurers to make this a condition. However, we do not understand how the 15 hours of specified nursing services could ever have been regarded as part of the council’s Direct Payment funding, and this is a frustrating aspect of the report.
The council could choose to provide training if it did not want to increase the budget to enable the responsible person to purchase it directly, but it could not just do nothing and leave the employers exposed to inability to get insurance.
The changes to transition practice were clearly required. The Care Act 2014 (s58) and Care and Support statutory Guidance para 16.7 emphasise the individualised nature that assessment and planning for transition should be characterised by:
16.7 Transition assessments should take place at the right time for the young person or carer and at a point when the local authority can be reasonably confident about what the young person’s or carer’s needs for care or support will look like after the young person in question turns 18.
In this complaint, there can be no doubt that regardless of its failure to review Miss Y’s care needs for a three-year period, Miss Y had significant care needs that the Council would have been aware of.
By dint of that fault, the Council had managed to provide a very minimal package of 13 hours per week support, perhaps due to the parallel nature of the education and NHS children’s health inputs within the plan. Its failure properly to assess and develop a care plan with Miss Y and Mr and Mrs X meant that her care package remained insufficient for an indefensible time. The LGSCO’s judgement was that the increased care package would have been in place from her 18th birthday (November 2017) but for the Council’s failings. It took until January 2019 to increase the care package and provide sufficient and adequate support.
The cost saving to the Council in this period would have almost certainly outweighed the remedial amounts it had to pay arising from the LGSCO decision. The measure of restitution, had the case been taken to the Administrative Court, following the precedent of CP v NE Lincs in the Court of Appeal (search ‘Lincs’ in the search box on the right) is the cost of what would have had to have been regarded as the only reasonable response on the facts, and on any rate per hour that is a lot more than £10K. In this case, the LGO’s investigator appears happy to have concluded that had it not been for the delay related fault, the young woman would have got a package of care over 2 years earlier, of at least this profile, because of officer C’s recommendation.
85 hours per week, less 13 hours provided, x £10 an hour x (say) 56 weeks = £40,320.
Restitution is only likely to be awarded where a council can be shown to have known that those put into the position of having to provide the care, were not able to be considered to be doing it truly voluntarily; and that evidence is missing from the report and maybe from the facts. So that might be a reason for awarding a large sum but one not underpinned by a specific calculation.
We have to say that unless the LGSCO makes an intended restitutionary awards explicit, councils will be likely to take the risk that such underfunding and poor practice will still result in a saving, even if there are further LGSCO complaints!
On any footing, the absence of a package of that size, and the implications of what it meant that they would have felt they had no option but to do, must have been significant – time spent chasing the Council, uncertainty about Miss Y’s future care and support and alongside the other issues such as the ceased direct payments, a lack of insured carers and the Council’s lack of response to Mrs X’s complaints.
Carers’ assessments are a statutory duty under the Care Act, not upon mere request, but on any appearance of needs for support, which a request would normally be adequate evidence of. It is frustrating that the investigator does not underline that the ignoring of the request was very probably a breach of statutory duty in this complaint.
Respite would have inured to the parents’ benefit, but is the client’s entitlement, such that loss of it should be reflected in the award to the service user, and £1000 was more than the value of the respite cover that had been recommended, so that was a fair outcome.
The transition assessment is required to be undertaken as part of one of the statutory reviews of the EHC plan (Department of Health Statutory Guidance 16.11). The Special Educational Needs Co-ordinator was not part of the review in December 2018 and despite the officer’s efforts to raise this with them, Miss Y still had no finalised EHC plan at the conclusion of this complaint.
The LGSCO has clearly indicated that the Council’s transitions process needs addressing and has issued a tough timeframe for it to make improvements.
This Council (and others who want to avoid creating similar poor press) must do better when it comes to departments and agencies such as Health working together. This is not a new concept, but clearly the confusion around whether Miss Y should have an adults’ or transition form of child’s assessment, the lacked of joined up reviewing, the cessation of the direct payment because information systems ‘weren’t aligned’ and even the complaints department not knowing what ‘type’ of complaint it was, all signal system failures within the Council’s understanding of what constitutes good transitions practice, and nobody taking responsibility for these gaps.
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The full Local Government Ombudsman report into the actions of London Borough of Croydon Council can be accessed here