Portsmouth City Council at fault for the inappropriate way in which it dealt with a former relevant child

Decision date: 16/01/20

What happened

Mr X is a ‘former relevant child’ who suffers from a variety of health conditions which have a serious effect on his ability to communicate in a respectful way. He was placed under the Council’s responsibility in 2010 under the Children Act, section 20 and agreed to the proposed academic pathway. He completed his A-levels whilst living in a homeless shelter and began a university course soon after. However, he dropped out in 2014 due to health conditions. He began another foundation level course but swiftly dropped out of this one as well.

Mr X then spent over £18,000 on an intensive one year course that would give him the relevant A-levels to secure a place on a course that interested him. This was after the Council had refused support and closed his case due to a lack of academic progression. He successfully challenged the decision not to fund him during this period of study and managed to reclaim some of the money from the Council. However, he was not granted any interest on the money. The Council claimed that this was because he had been caused no injustice as he not had to pay interest himself.

In 2016, the Council agreed to support Mr X’s study at university as a care leaver. It said he would be entitled to non term time accommodation but claimed it could not give him a higher education bursary as he had previously received this one-off payment. Mr X claimed that the Council did not pay the full amount of his accommodation. He requested that his transport and several other items related to his study be funded by the Council.

The Council has a guide for leaving care available on its website. For care leavers who go into higher education, the Council will pay a £2,000 bursary. It also says “if you wish to go on to Doctoral level study we will expect you to self-fund by utilising paid studentships, employment and government loans. Your PA will be able to assist you in identifying funding streams you could apply for”.

The Council said to the LGO that it is prepared to support students through to PhD study where appropriate to do so. It said it would assess the ability of the person, whether it was likely to lead to employment, and the contribution of the person to identifying funding.

Mr X complained to the Council about his pathway plan as it did not include PhD study. He felt that his concerns were being ignored and so increased his efforts. The Council responded by marking him as a ‘vexatious complainant’ which restricted his ability to communicate with it.

He did not want to disclose his own bank statements or take part time work to help himself financially, because his position was that his conditions militated against that being a good idea for him.

The council’s supposed independent investigator’s report says that Mr X reported to Council staff that he had around £25,000 in savings. “This immediately prompts the thought that the local authority has been giving him too much money”. Also “given the size of his income, the demand for payments he seeks from this investigation cannot be considered sympathetically”.

Mr X was not a man to give up lightly on what he regarded as his rights. The volume of his communication became excessive and at times unpleasant. The Council says it got to the point where it was impacting its support of other young people and the wellbeing of staff; the evidence the LGO had seen supported this view.

The Council said it made several adjustments to its usual approach to support Mr X (having dubbed him a vexatious complainant). This included:

  • Providing Mr X with a designated time to discuss issues with the service leader to prevent his anxiety escalating.
    • Setting up a dedicated inbox to ensure clarity of communication and ensure timely responses.
    • Enabling Mr X to move closer to the university as he struggled with public transport.

What was found

There was no fault with Portsmouth City Council for not including PhD studies on Mr X’s pathway plan; it has no duty to go that far. The fault was to state that it could not support him.

The Council should have helped with preparations and assess whether it should provide support beyond his masters’ degree, as part of the Leaving Care responsibility.

The Council ironically caused Mr X an injustice by assuming that he had suffered no injustice, after it took over a year to repay him £18,000.

The assumption was based on the fact that he was not charged any interest on a debt that was caused by the repayment delay. However, he could have invested or spent the money he was owed and denying these options caused him an injustice.

The Council also has a responsibility to pay for Mr X’s non term time accommodation and must consider if there was any shortfall. There was no fault found in the Council’s approach to the other claims.

There was partial fault found in the Council’s categorising of Mr X as a ‘vexatious complainant’. As a former relevant child, Mr X was a young person to whom the Council was parent. Despite fitting some criteria, the term was unhelpful and escalated tensions.

Remedies

The Council has agreed that within two months, it will

  • Communicate clearly in writing what support it is able to offer Mr X with regard to his career and personal development and what rights it has to access information about his finances;
  • Work out the compound interest using RPI from the date Mr X paid to the date he was paid back, minus 2 months;
  • Pay Mr X any shortfall (with interest) on the evidenced cost of the holiday accommodation;
  • Develop a protocol with Mr X in case he becomes unable to communicate;

Points for the public, councils, care leavers, with or without Care Act packages, and advocates

The law and government guidance set out councils’ legal duties to provide ongoing support for children leaving care.

Councils have a responsibility to plan continuing support for all care leavers. This duty continues until they reach age 21.

If the Council is helping them with education and training, that specific duty continues until age 25 or to the end of the agreed training (which can take them beyond their 25th birthday).

Councils must provide former relevant children in further education or training with financial assistance, for their educational or training needs.

This does not include a duty to provide accommodation, aside from during non term time periods.

Following a needs assessment, councils may consider contributing to post graduate courses and helping young people to identify financial support and other resources.

Councils must have regard to the principles when carrying out their functions in respect of looked after children. They should also ask the question “Would this be good enough for my child?” – so although variation in relation to each care leaver is permissible, the duty is predicated upon and triggered by an assessment of what a parent would do, in the ordinary situation, for this young adult.

It is almost inconceivable that a bright and determined adult would be denied all forms of support to follow a PhD course, we think. No doubt this council felt that what it was doing was what a parent would also do, which is to weigh up the commitment on the part of the young person him or herself by expecting that person to explore other forms of funding and employmet; the trouble was that this young man had disabilities which meant that the ordinary expectations of 25 year olds, if there are any these days that are actually shared, could not be applied without adjustments.

The LGO understood the difference:

“If a PhD is a realistic ambition, it should consider whether he is able to access the usual forms of funding. This should not be based on what others can do but on what Mr X can do. It should also keep in mind the corporate parenting principles of promoting high aspirations and seeking to secure the best outcomes.”

On expecting a person to explore other sources of funding and earning income to facilitate his ambition, the LGO said this – which we think gets the balance absolutely right:

“[There was no] information about how the Council will treat young people’s own funds; this is fault. It should be clear about how it will consider their finances when deciding about funding. If Mr X has managed to save a significant sum, this ought to be a positive achievement. Although it may mean the Council’s contribution can reduce, it should not lead to thoughts such as “the local authority has been giving him too much money”. The Council implies it has no understanding of how Mr X has accumulated the money, so this approach is unhelpful. I have already considered the £18,000 the Council paid Mr X over one year after the costs he covered. Mr X advises me this sum forms the basis of his savings and the Council should not be surprised that he has such a large sum available to him.”

Mr X’s failure to disclose his financial information cannot retrospectively affect decisions the Council made to fund. However, it may inform future decisions for discretionary support. The Council should provide Mr X with written information about the Council’s rights to information about his finances, what it can use this for and how it might affect its decisions. With this, he can make an informed decision about his responsibilities around engaging with the Council.

On interest and the basis for recommending it be paid, the LGO said this:

“We do not normally consider including interest in a remedy unless the delay was more than six months and the payment more than £1,000. In this case, the delay and sum involved significantly exceeded this. We usually base the calculation of interest on the average retail price index (RPI) for the period. The Council should pay Mr X interest (compound interest) calculated using the RPI from the date Mr X paid the funds out to the date the Council repaid him, less the first two months. The two months is to allow for the time normally taken to issue a repayment. Whether the Council has been helpful to Mr X or more generous than it might have been, this does not mitigate the delay repaying such a significant amount.”

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The full Local Government Ombudsman report on the actions of Portsmouth City Council can be found here:https://www.lgo.org.uk/decisions/adult-care-services/other/18-015-989