Author Archive for belindaschwehr – Page 4

Care home bed shortages affecting hospital discharge

This video looks at how the shortage of care homes now willing to take council funded clients at the fees that councils wish to pay, is leading to more delayed discharge from hospitals, and at some of the responses to this problem, on the part of the NHS and local authorities

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Being stuck in an ATU

This video looks at why there are so many people fit for discharge from assessment and treatment units but not able to leave, because of the complexity of the regime for accessing suitable housing – separate to the regime for getting aftercare

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The Impact of Austerity

Belinda Schwehr from CASCAIDr looks at whether statutory duties are still legally enforceable in an era where everyone knows that money is tight

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Til DELAYS do us part

CASCAIDr’s Belinda Schwehr talks about the chronic delays in having support plans finalised and how this is impacting vulnerable people

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Chaotic and chronically delayed Care Plans

Belinda Schwehr, from CASCAIDr talks about how local authorities are failing in their duty, according to the Care Act, to write up Care Plans for those who need their care, and why it matters

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The Monitoring Officer – a ballistic missile for service users, when faced with unconscionable delay in getting a decision on a care package or budget!

This post is for flagging up that there is a much easier way of challenging a local authority’s actions or decisions, policies or practices, than complaining, and it’s not widely publicised. The people responsible for managing this system don’t even agree about its scope, but that doesn’t mean that the words in the statute don’t mean what they say!

It’s use of the Monitoring Officer’s own enforceable and mandatory independent statutory duties to keep a roving eye or ear out, for alleged unlawfulness within his or her council. Its existence means that all you have to do is know enough about law to be able to string 3 or 4 paragraphs together (about the Care Act, the Guidance or the Regulations, in the case of adult social care issues) to lay out for a Monitoring Officer a coherent arguable case on why what’s been done, or is about to be done or not done, is simply not defensibly lawful. 

This duty was first created under an Act that goes back to 1989, when governance no doubt meant something different to people working in the public sector, to what it tends to mean now.

The attached document ‘What is this information FOR’ is an explanation of what the Monitoring Officer is there to do, and a table of nearly all the Monitoring Officers in adult social care councils in England and Wales, together with their email addresses. A few are missing and will be added if anyone can give me the information, which should be in the public domain.

How to contact these Officers: if you ring up a council you will often find the receptionist doesn’t have the means to find out who the Monitoring Officer is, and that makes us MAD! So we have put this together, although it may not be up to date – email addresses to use for reaching their attention.

Monitoring Officers’ list

There used to be an excel spreadsheet supplied by a data supplier to our CEO for money, but it was a breach of the terms of the licence for her to share that with the public. She then used it to enquire of Monitoring Officers, directly, whether they object to their email addresses being publicised, and where that was the case, she has left the name blank, given a generic address instead, or otherwise checked data that is publicly available to advise people how to get in touch with the relevant Officer, before gifting this material to the charity. Her logic is that the information as to the Officer’s name could not be refused if the council was asked for the person’s contact details, and if the council’s receptionist does not know, anyone could use an FOI request to the council to find out who is their designated Monitoring Officer – since the law says that there has to be one!

If there are references to Acting or Interim in the job title, they may well have changed recently.

There is also a justification for publishing their email addresses, without explicit consent, for Data Protection Purposes. If anyone thinks that making it easier to uphold the law in adult social care, by telling people how to use a remedy that’s been provided through the will of Parliament, is not a legitimate interest, on my part, as a data controller, then they are able to complain about this to the Information Commissioner, with whom CASCAIDr is registered.

We very much hope that people will put two and two together, and equip themselves to do polite, informed battle for their or their loved one’s care packages and budgets.

CASCAIDr will do these letters for free for people who have FREE SCOPE issues as described on our home page. If a problem is not within that scope, but is still one where illegality lies at the heart of the dispute, then we will do this for an affordable fee.

One needs to use our referral form, under the Free Advice Tab, to enquire, please

If one were to be simply ignored by the Monitoring Officer, that could be a breach of the law by him or her, in person, and would also be likely to be maladministration, for the consideration of the Local Government Ombudsman.

What is this information for

Getting Legal Help and Legal Aid

Law firms don’t HAVE to offer legal aid funded services; and very few firms nationally, do legal aid work for community care matters, even if you would qualify, by reference to your means – and there’s a merits test as well. But there’s a search tool below, for finding the firms that offer this service. 

The Public Law Project is now a Charity, and can be a good place to go for advice about where ELSE to go.

The Disability Law Service has a legal aid certificate as well for this area of law.

If you know of any others, please tell me their names, by email belinda@cascaidr.org.uk

Don’t forget that you can now go straight to SOME barristers through what is called Direct Professional … or direct public access arrangements: google “community care law” or “social care law” alongside the word barrister and email or telephone the clerk and ask whether these arrangements operate in those chambers or with a specific named barrister whom you’ve found on a search.

Law firms offering community care legal services, in no particular order:

Ben Hoare Bell; Simpson Millar; Irwin Mitchell; Pannone’s; Bindmans; TV Edwards; DPG Law; Martin Searle Solicitors; Edwards Duthie; Switalski’s; Cartwright King; Ridley & Hall; MG Law; Foster & Foster; Sinclairs; Howells; Stephensons; Jackson Canter; Latimer Lee, Wrigleys; Clarke Wilmott; Julie Burton Law (in Wales); Burroughs Day (Quality Solicitors); Alison Castrey Ltd; David Collins (best for providers arguing about fees, but it is not known whether they take on individuals’ own claims about fees, other than for CHC); Brunswicks (mainly for providers); Bates Wells and Braithwaite (mainly for providers’ arguments and particularly charitable providers) and Anthony Collins Solicitors (also focusing on Providers’ work).

If you could only afford legal advice if you were financially assisted, you need legal aid or crowdfunding. Use this link below, together with the ‘Category’ filter on the linked site, to check out if there’s a firm local to your postcode, with a contract for Community Care work – they are few and far between, these days, but most will deal with you on the phone or online, so distance need not be a problem…

http://find-legal-advice.justice.gov.uk/

Search facility for legal aid solicitors

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NORMAL?

There’s very little attention shone on the effects on families of dealing with learning and/or physically disabled people. This is probably going to start off seeming selfish, but if you’ll bear with me I hope you’ll realise that it comes from precisely the opposite sentiment.

My personal viewpoint is one of a sibling – my adult sister was born disabled. As a result of decades of support and the good work put in by many people, she is now capable of some independence and eagerly contributes to society – within her limits and with careful oversight. She genuinely wants to live as full a life as she can. She doesn’t want to be a passenger.

Here comes the selfish bit. I’ve had to alter my life choices as my relatives have aged and died, since I could no more throw my sister out of a car into a remote country ditch than cut off my own arm. Nor would my parents have ever done that. Later in life, my mother confided in me that she used to feel like telling me “just run, get away from this”. She didn’t and she knew I wouldn’t have done it anyway. It was just expressed in the spirit of honesty between us.

I understand completely those who can’t cope and walk away, and I make no judgement whatsoever. I also have great sympathy for those who don’t have the resources and patience to navigate the complexities of the care system. If you dread filling out a tax return (and who doesn’t), try this stuff sometime… And I completely sympathise with those who simply don’t want to make waves for fear of prejudicing the care of their loved ones.

Siblings of disabled people, in my experience, are psychologically shaped by often damagingly early parentalisation. You are, to some degree, a parent from the age of about four, and it’s formative on your personality in many ways – some of them positive. But there’s all the sense of guilt, responsibility and burden that goes with being a parent. And pride in achievements, of course. You grow up with that, from the first moment your child brain is capable of comprehending that someone else is really just the same as you. We’re all just experiencing the world from the confines of our flesh cages.

But for a roll of the dice, it could have been you. As you grow up, the notion that this is the way things are and it’s nobody’s fault takes quite some emotional effort to handle. At some point, it’s inevitable that you’ll come into contact with others who have the same sort of difficulties as your family member, and you just can’t help but feel empathy for them. It becomes more than a personal issue and that’s where the selfishness resolves into something else. You get involved.

Interesting that so many people working in care giving have family members who require it. It’s not because they’re trying to get into the system, it’s just awareness. Also interesting that parents and guardians tend to get together informally and offer support to each other.

But remember – behind every disabled person is a partially disabled family, and everyone is trying to do their best. That is of course, if there is a family.

Families are always complex – your “normal” brother may be thick or your “normal” sister may be lazy, but this is a level beyond that. However thick or lazy they may be, they don’t need assistance just to function. Disabled people, in my experience, don’t want to have to need help, but must somehow reconcile themselves in their own way to the fact that they do. And those around them have to find a way of giving them that help in the right way. For instance, someone in a wheelchair is just someone like you, only sitting down. That’s all.

I don’t wish to politicise this specifically – it’s very complex. Nor do I wish for a “here state, catch” approach. No begging for handouts, this isn’t what this is about. And I’m not complaining, I’m explaining. My thinking is purely practical (it comes with the territory).

The care of learning and physically disabled people involves a great many governmental and charity organisations.

So if any of this has chimed with you, whether personally or otherwise, I’d ask a few things of you when you may have the time. Get involved in the debate and share your experiences and concerns. Lobby your council and MP so that policy and care provision on the ground can be properly addressed. Donate a few bob to CASCAIDr, which has helped our family, when you can. Or just take a couple of minutes out of your day with someone, when you can.

We are all of us on a complex sliding scale – with a totally arbitrary definition of “normal” – somewhere on the line. We all have our strengths and weaknesses, and we all need help sometimes. And of course, inside our own heads, we’re all “normal”, aren’t we?

A.N.Brother

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CP v North East Lincolnshire Council [2018] – a much needed judicial re-statement of pre-Care Act legal principle about the transparency of, and requirement for, an explicit Personal Budget!

In this case a challenge was made about the provision for a 22-year-old woman, CP, with complex and multiple disabilities requiring round-the-clock care.

CP’s parents and the local authority were also engaged in an FTT appeal about educational provision which had a bearing on what else was or might be needed. They continued Alternative Dispute Resolution (ADR) efforts during that appeal and, by the time of the judicial review hearing, had essentially reached agreement about the degree to which CP’s social care needs would be met by informal care from her mother, and the level of that part of CP’s Personal Budget to be delivered via a Direct Payment.

Over the period of dispute, the local authority had repeatedly reassessed CP under the Care Act and issued new proposed care plans which increased the proposed Direct Payment from £387.50 per week via £519.70 per week to a final agreement on £720.67 per week.

Transparency of the Personal Budget

Several of the earlier care plans had failed to state a personal budget at all and none had set out any breakdown of the figure.

In line with the pre-Care Act case law (R (Savva) v Kensington & Chelsea [2010] and KM v Cambridgeshire [2011]), HHJ Wood (QC) took the view that the duty in S.26 Care Act to specify the personal budget for the adult required a transparent figure which set out how the persons’ needs could actually be met by various elements within it.

Personal budgets

“93. It is important to understand the rationale of the personal budget which is available to the individual being supported and his/her carers. It seems to me that this is clear from paragraph 11.3 of the statutory guidance. The adult with eligible needs and those providing voluntary care should have a good understanding of the extent to which support will be provided by the local authority in respect of both those services which are provided directly by specialists (and paid for by the local authority) and those which will be funded by way of direct payment. Of course, because voluntary care figures in most assessments, and it is this aspect in which the family will be interested, if the personal budget covers the total cost of meeting the eligible needs, thus including the direct payments, that element to be provided voluntarily will be easily discernible.

94. The duty is a clear one derived from section 26 of CA 2014, and any failure to provide a transparent budget in a care and support plan represents a prima facie breach of that duty which in my judgment would be susceptible to legal challenge by way of judicial review, assuming that it was otherwise uncorrected. The Claimant provides a compelling argument in respect of the earlier plans which were defective in providing this transparency.

Informal Care 

“It is also clear that an adult’s family carer is under no obligation to meet the eligible needs of the adult and necessarily any plan must be contingent on such care being withdrawn, or the local authority being made aware that the carer is not in a position to cope.” [Para. 97]

However, the judge went on to hint that, even if a carer believed that an assessment was overly reliant on informal care input there were steps which could (and maybe should) be taken short of judicial review to resolve the disagreement. (Our comment would be that perhaps the judge believed that complaints actually sometimes lead to a change in professional judgement; does anyone out there have any evidence of that, please?)

He did not say that one had to make a complaint, however, before using judicial review:

…“unlawfulness could only be identified in circumstances where there had been a refusal to review in response to a complaint, or insistence on family care in the light of clear evidence that the family was unwilling, or that there had been an irrationally low level of care identified on the assessment.” [para. 102]

In relation to what should go into a s25 Care Plan, paragraph 6.15 of the Guidance appears to have been overlooked and not specifically considered during the hearing.

Paragraph 6.15 spells out in greater detail the relationship of informal care provision to the process of assessment:

“During the assessment, local authorities must consider all of the adult’s care and support needs, regardless of any support being provided by a carer.

…Where the adult has a carer, information on the care that they are providing can be captured during assessment, but it must not influence the eligibility determination.

…After the eligibility determination has been reached, if the needs are eligible or the local authority otherwise intends to meet them, the care which a carer is providing can be taken into account during the care and support planning stage. The local authority is not required to meet any needs which are being met by a carer who is willing and able to do so, but it should record where that is the case. This ensures that the entirety of the adult’s needs are identified and the local authority can respond appropriately if the carer feels unable or unwilling to carry out some or all of the caring they were previously providing.”

The judgment should also be taken as a reminder of the need to engage in extensive ADR efforts prior to and during the process of Judicial Review (see Cowl v Plymouth City Council [2001]), especially where, as in this case, the public body appears willing to review or reassess the situation.

That said, one wonders whether such substantial increases in CP’s Direct Payment would have been forthcoming without the existence of the Judicial Review proceedings. It should also be noted that, nevertheless, Judicial Review remains the appropriate route where the claim raises a point of law of general importance or where the public body involved fails to give clear decisions and/or reasons (O.H. v London Borough of Bexley [2015]).

Full text at: CP v North East Lincs

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Local Government Ombudsman’s recent reports on issues arising around transition from children’s to adults’ services at Darlington Borough Council

Hertfordshire County Council (16 009 954)

 

Adult social care · Transition from children’s services · Review of Care and Support Plan · Decision date 27.9.17

 

Facts:

In this case the subject, Ms Y, was cared for by her sister, Ms X, after their mother died.

She was a young woman entitled to adult social care and was also subject to an EHCP.

While Ms Y still had an EHCP, she had transferred to adult services and this complaint was about the review processes for the care and support plan under the Care Act 2014.

Principally the complaint concerned the delay in reviewing Ms Y’s care and support package. There were various changes to the care and support package through 2015. Decisions in relation to the funding were made at a Council Panel and during 2015 there were nine occasions when the Panel considered this case. Payments through 2015 varied as there were changes in the support plan which included, for example, additional sums to pay for activities and transport.

Early in 2016 the sister stated the payments were reduced significantly. The Council stated that the reduction was likely due to the change in services provided by an agency, to the Council providing direct payments.

Ultimately in 2017 the payments were reinstated to 2015 levels, but the Ombudsman found that the information provided by the Council about the support package was confusing and it was not possible to establish the rationale for all the past payments.

The Ombudsman did not investigate complaints regarding the education part of the EHCP as Ms Y had a right of appeal to the SEND tribunal. Ms Y had appealed to the Tribunal regarding the ability of Ms X to continue to attend college for a third year.

Outcome:

Complaint upheld · Payment of £200 for avoidable distress

 

The Ombudsman’s approach

The decision sets out a summary of the Care Act 2014 provisions in relation to assessments and reviews. It references the Care and Support Statutory guidance as the decision notes that reviews must not be used to arbitrarily reduce someone’s care and support package.

The Ombudsman did find fault, as the Panel’s decisions, which were significant in terms of deciding eligibility and support, were not properly recorded and minuted. As a result, it was not always possible to understand the rationale behind decisions.

“Panel decisions, which are very significant in deciding eligibility and support, are not being properly recorded and minuted and therefore it is not possible to understand always the rationale behind decisions. This amounts to fault and the Council needs a system of recording reasons for Panel decisions. There should also be a record of the information which the Panel has considered when reaching its view.”

Comment:

This approach chimes exactly with the approach of the court to Panel maladministration in the Merton judicial review in 2017.

The Ombudsman did not make a finding as to whether the care and support plan was sufficient or not during 2016. Therefore, the agreed compensation of £200 was a limited amount purely to cover Ms X’s avoidable distress caused by the confusion about payments.

The Council stated that overall it was satisfied that it had met Ms Y and Ms X’s needs and that they had not missed out on a proper support package and the Ombudsman was satisfied with that, whereas a Court might have probed further and regarded the absence of reasoning as suggestive of irrationality, in and of itself.

 

Note

The SEN Code of Practice requires that the Local Authority must set out in Section H2 of the EHCP any adult care and support that is reasonably required by the young person’s learning difficulties or disabilities (Para 8.70).

This is also echoed in the Care and Support Statutory Guidance at Para 16.65/16.66, although it is not actually what the regulations regarding Section H2 say (focusing as they do, on children and young people….not adults):

“For people over 18 with a care and support plan, this (implicitly, what should go  into H2) will be those elements of their care and support which are directly related to their SEN….”

By the time of the Ombudsman’s decision the outstanding issue regarding Ms X’s college attendance had been resolved and the appeal to the SEND was not pursued.

Note that from 3 April 2018, for a person who is still a child/young person, a SEND tribunal hearing an appeal about the Education aspect of an EHC, will be able to make non-binding recommendations regarding the health and social care aspects of the plan.

 

 

Hertfordshire County Council (16 012 970)

 

Adult social care · Transition from children’s services · Failure in planning move from one provision to another · Interim arrangements · Agency unable to provide contracted service · Decision date 13.9.17

 

Facts:

The Ombudsman’s decision notice has a lengthy account of the difficulties faced by this family once their son, D, was unable to remain at his residential placement. The adult was 23 years of age and had severe autism, learning difficulties and challenging behaviour.  The residential home where D lived originally had given a standard 3 month notice on the placement: in effect it declined to keep him on at the care home, because of incidents with other residents. At the end of that period alternative provision had not been agreed and, following an incident, the placement was terminated with 12 days’ notice.

The family provided care at home for a lengthy period before a resolution was reached as to their son’s accommodation.

The social worker completed a care and support plan for D for his period at his parent’s home, but this was largely based on his previous residential environment, and stated that he ‘may’ need 2:1 care.

This was not actually provided, and indeed, on some days, nobody attended and nothing was done about that, causing enormous distress for all, given the extent of this man’s needs.  

When the worker was away for the first two weeks of August, the agency could not arrange cover but did not inform Mrs A until she called to ask why nobody had arrived. According to Mrs A’s records, D only had care from the agency for four days in August.

Eventually, the assessment was updated and whilst it contained most of the same information as before, it included new details about D’s behaviour following his return home. It recorded his level of need in all domains as exceptional, both alone and with his family, and had more details about how support workers should deal with aggressive episodes. According to the assessment, D was supported with a 2:1 staff ratio in the community (although this was not actually happening). It concluded that D requires full-time care on a minimum 1:1 basis, with consistent carers. The support plan did not change, despite these changes.

In the November the Council agreed to provide direct payments to Mrs A for the care she was providing to D. It paid her around £630 per week, based on 47.5 hours of care, and backdated the payments to 20 June.

The Council said that it continued to offer other services but Mrs A preferred to keep the direct payments. Mrs A refuted this and said she wanted to return to work but continued caring for D because there was no suitable alternative.

Following some incidents at home, the Council arranged for Agency Y to support D with two workers for 11 hours per day from Monday to Friday. This started in January. Mrs A’s position was that if the Council could now actually put this in place so quickly, it should have done so much earlier. The Council’s position was that Mrs A decided to pursue other options and receive the direct payments, but by December she accepted that she could no longer care for D herself; hers was that she made this decision not through choice but through lack of any apparently acceptable alternative.

The council then agreed that the agency would support D until he moved into Council accommodation.

There were housing application difficulties related to capacity to enter into a tenancy, necessitating an application to the Court of Protection, and then D assaulted Mrs A.

Ultimately the young man was placed in an out of county of residential unit that had previously been rejected by his parents due to its location away from the family home.

Outcome:

Complaint upheld · Payment of £1500 compensation

In this case the young person had transitioned to adult social care and the Ombudsman’s considerations related to the Council’s duties under the Care Act 2014.

Fault was found with the Council in relation to its planning for D’s move from residential accommodation, the lack of clarity regarding his specific support needs, the poor service from a commissioned agency, delay in arranging suitable interim provision and the Council’s response to the complaint.

The uncertainty, disruption and gaps in provision during this period caused D and his mother significant injustice.

 

The Ombudsman’s approach:

In particular, the Ombudsman focused on the duty of local authority to meet eligible needs and to review the care and support plan if there is a change in circumstances (see Care and Support Statutory Guidance, 13.18).

Further the Ombudsman emphasised that the local authority remains responsible for the quality of services provided by contracted agencies and has a duty to ensure there are sufficient good quality providers (see Care and Support Statutory Guidance, Chapter 4).

The Ombudsman considered that insufficient planning had taken place during the 3 month notice period from the original care home, but even if it had, it still might not have avoided D returning home, as an interim measure.

However, the lack of planning meant that the agency engaged to support D at home as an emergency solution was not actually capable of providing the support needed.

The Council was at fault for the lack of planning and problems with the support package.

Further when the Council did find a second agency to provide support, it was at fault for not confirming arrangements, which meant it lost the services of that agency.

The Ombudsman did not find fault for the local authority delaying updating the care and support plan until 2 months after D returned home as it gave potential providers a ‘good idea of his needs and risks’ and in view of the very special extent of his needs, the Ombudsman did not think it would have changed the outcome in approaching providers.

The Ombudsman did not find fault with the delay in making an application for independent living accommodation to the local housing authority. The delay was caused as D’s situation fell outside the current allocation’s policy and it took time for discussions which lead to D being treated as a special case.

It was further delayed when D’s parents were advised that they would need to apply to the Court of Protection as D did not have capacity to sign the tenancy agreement.

The Ombudsman’s view was that the complications were unforeseen, and the Council had worked with the family to resolve them.

Comment:

Although the complaint was upheld, compensation was recommended, and charges were returned to reflect non-delivery of services, there are a number of surprising conclusions on the part of this LGO approach.

The Council was, throughout,  under a duty to provide information and advice in relation to care and support including advice on relevant housing and housing services.

Advice could have been provided at an earlier stage regarding the ability or otherwise of D’s parents to sign any tenancy agreement on D’s behalf.

Competent legal advice could have identified that it is a moot point whether the case law (Oxford City Council) on incapacity and applications for homelessness provision, applies to joining the housing register. Given D’s needs it seems reasonable to assume that he was unlikely to have capacity to enter into to tenancy agreement well prior to leaving his original residential accommodation.

Once supported accommodation was being considered and the assault had occurred, the Council could have provided advice about how the prospects of accessing such accommodation could be brought forwards, through benign eviction by the parents.

The decision does not explore what arrangements existed between the Council and the housing authority, if any, to ensure individuals with care and support needs are able to obtain suitable living accommodation.  The Council has a duty under Section 3 of the Care Act 2014 to ensuring the maximum integration of the care and support provision with housing provision (see 3(1) and 3(5) CA14).

It is not clear how or why the Ombudsman found the level of provision available to the council for the meeting of needs that it was obliged to meet, was sufficient, or sufficient to comply with its responsibilities under Section 5 of the Care Act 2014 to ensure that there is choice of quality services in the market in services for meeting care and support needs.

The decision sets out, to a limited extent, when parents/carers may be justified in refusing a service; it is a double edged decision as is shown by the fact that the Ombudsman did not find fault during the period where Mrs A was receiving direct payments for directly providing care whilst looking for agencies that could possibly meet needs.

Here the Ombudsman found that D’s mother was justified in refusing the respite care that was offered as an interim measure to cover the gaps in provision.

What is not clear is why this was justified when refusing care from the third agency in September was not.

It is also surprising that nothing was said about the obligations of the original provider under the Human Rights Act for anyone accommodated by a council under the Care Act: such providers are legally directly liable for delivery of human rights, which ought to affect any provider’s approach to serving notice. It is not suggested that this could prevent the giving of notice, but at the very least, article 8 rights must compel conscientious alternative dispute resolution where that could conceivably help.

All in all our view was that this was a case which might have produced a successful outcome by way of a judicial review of housing and/or social services decisions or failures to MAKE decisions. Equally, it has to be remembered that a well prepared authority will win a judicial review by establishing that they were rationally optimistic with regard to the suitability of options explored. The parents may have been perceived as simply being too demanding or worse still, obstructive of agencies doing their best in difficult circumstances.

 

 

 

Durham County Council (16 012 258)

 

Adult social care · Transition from children’s services · delay in carrying out transition assessment · Gap in provision · Decision date 25.4.17

 

Facts:

Y lived at home with his mother and received outreach and respite services from children’s services.

Y had been referred to adult social services when he turned 16 and had been allocated a social worker prior to his 17th birthday.

The transition assessment only started when he was 17½. This lead to a 3-month gap in the provision of respite services.

Outcome:

Complaint upheld · Payment of £1000 compensation

 

The Ombudsman’s approach:

While the decision refers to the statutory guidance that Council must carry out a transition assessment “when there is significant benefit to the young person or carer in doing so” the decision does not actually express any view on the time that that would be.

The decision found the Council had not fettered its discretion by usually starting transition assessments when young people were 17½.

It accepted that the Council looked at individual cases although in this case the Ombudsman considered that the assessment had been started too late: allowing 6 months meant that there was a significant risk that provision would not be in place as the young person found change difficult and his current provision could not take over 18’s.

While the Council had identified a respite placement in that time Y’s mother did not consider it suitable. Mrs X’s refusal of the placements offered was reasonable, given they were intended for persons aged over 25 and Y was only just 18. 

The Ombudsman found that if the assessment had started earlier it might have been possible to start the provision that Y’s mother had found without any gap in service. Y’s mother’s reasonable refusal of the offer did not mean she was responsible for ending the respite service. It was the Council that had not continued the respite services that it assessed that Y needed – in this case by not identifying provision that could meet this need when the existing provider could not continue.

The decision does say that where a Council is unable to organise alternative provision by the time a young person reaches 18 it should maintain the existing provision until its replacement is ready. This reflects section 17(ZH) in the Children Act 1989 which states that the Council should continue providing services under Section 17 of the Children Act 1989 until a conclusion has been reached on the transition assessment. A conclusion is not considered reached until the Council begins to meet any assessed needs. The practical problem arises when, as in this case, the actual respite provision will not continue to provide a service to the young person post 18 so a new respite provider was needed regardless of which statutory regime was applied. The Care and Support Statutory Guidance makes clear at paragraph 16.53 that the transition period should be planned to ensure that there is not a sudden gap in meeting the young person’s needs.

Comment:

We are aware of other cases where CAMHS units are not contracted by NHS England to keep young persons beyond their 18th birthday – a voluntary patient or a sectioned patient is therefore at risk of this situation unless the relevant Adults’ Services or s117 teams do the necessary planning and commence it in good time.

 

Kent County Council (15 007 344)

 

Adult social care · Transition from children’s services · investigation of complaint by Council· Gap in provision · Decision date 9.2.17

 

 

Facts:

Miss B was released from a secure hospital after a year at age 17. She returned home as a temporary measure while the Council helped her secure accommodation. Miss B complained about the lack of support following her release from the secure hospital, not dealing with her complaints or providing her with information about the statutory complaints process. It was unclear whether Miss B had been advised about the statutory complaints process: the service manager indicated that Miss B had been happy with the outcome of the complaint and the Council’s records indicated that Miss B had been contacted to see if she was happy with the response to her complaint and no reply had been received.  

Outcome:

Complaint upheld

 

The Ombudsman’s approach:

The Ombudsman determined that the Council should have confirmed whether Miss B was happy with the outcome of its stage 1 response and made sure she knew her options under the statutory complaints process. This part of the Miss B’s original complaint to the Ombudsman was upheld but, as the Council had agreed to deal with the outstanding aspects of Miss B’s complaint regarding the lack of support she had received, there was no need for further investigation.

Comment:

The decision places the onus on the Council to ascertain whether the complainant is happy with the outcome of a complaint and to ensure that a complainant is aware of the statutory complaints process rather than relying on a lack of response to their enquiry.

 

Essex County Council (16 011 102)

 

Adult social care · Transition from children’s services · 7-month gap in provision · Decision date 7.2.17

 

Facts:

P was 19 years old and profoundly deaf and had learning difficulties. He turned 18 and was referred to Adult Social Care in March 2014. P attended a residential school for the deaf until December 2015 when it closed, and he returned home.

His social care assessment was updated and a request for a support package was put to the Council’s Panel. The package was not agreed as further information regarding costs was sought.

It took 7 months for the package to be agreed in which time P and his mother were without adequate levels of support which meant P’s independence skills regressed and placed strain on his mother.  

His mother complained that P had no adult social care or educational provision from the time he left the special school.

Outcome:

Complaint upheld · Payment of £2,200 compensation. It was agreed that the Council would apologise and pay £1450 to Miss N and £750 to P.

 

The Ombudsman’s approach:

The Ombudsman’s decision sets out the legal requirement that the Council must continue to provide services under the Children Act assessment until it conducts an assessment for adult social care under the Care Act.  This reflects the provision of the Children Act 1989 Section 17(ZH).

The recorded facts of the decision do not make it clear whether services were being provided under the Children Act 1989 or whether the transition to adult social care had already happened. The facts simply refer to the updating of his social care assessment. But whether or not services were being provided under the Children Act or the Care Act, the reality was that P’s placement at his residential school came to an end earlier than anticipated due to the school’s closure and so alternative provision was needed.

The social worker who updated the social care assessment recommended a package of support, but the Council Panel did not agree to this package while the costs were explored. As a result, nothing was put in place. While the Council was entitled to have considered the cost in determining how the eligible needs were met, it was not entitled to treat cost as relevant to an option not to meet the needs. Therefore, the Council should have met the eligible needs that were identified under a Care Act assessment or continued to meet the assessed needs under the Children Act (even if the type of provision needed to change).

Comment:

This approach is wholly consistent with social care legal principle.

Oddly, the decision does not deal with P’s educational provision although this was part of the original complaint.

The Ombudsman did assume that P would have stayed at school longer but for his school’s closure.

There is no reference in the decision to whether P was subject to an EHCP or could have transferred to one under the transitional arrangements under the Children and Families Act 2014.

P’s mother did accept a support package for P which was subsequently offered by the Council although it did not make provision for any remaining educational needs.

The Ombudsman considered, had P been able to stay at his school that would have given more opportunity for planning P’s transition to adult life.

Had P been subject to a statement, and then an EHCP, transition planning should have started in Year 9. The Children and Families Act guidance in recommending that transition planning should have already been started in Year 9 is not necessarily referring to the process called a transition assessment under the Care Act – one of those is an assessment against adult services criteria, after all.

Even without an EHC, however, a transition assessment should have taken place when it was of significant benefit to P, if regarded as requested.

 

 

Stockton-on-Tees Borough Council (16 004 812)

Adult social care · Transition from children’s services · Monitoring of transition plan · Delay · Decision date 6.1.17

Facts:

This young person, C, had severe autism and learning difficulties. He had a statement of SEN and attended a special school. He was able to stay at school until he was 19 (July 2015) and thereafter his mother requested he attend college from September 2015.

This request was first made at C’s Annual Review in year 9 in 2010 and transition was discussed again at the Annual Review in 2013.  

The Council converted his statement to an EHCP at the Review in February 2015. The funding for this placement was agreed at the Council’s education, health and care panel in April 2015 but then also needed to be agreed by the Council’s Children’s Multi-agency panel. This occurred in June 2015. A final EHCP was sent out in May 2015 but without naming a college. The revised EHCP named the college in July 2015 and the college confirmed his place in August 2015. This was shortly before C started at the college in September 2015.

His parents complained that his transition was inadequate and rushed, leading to him needing 6 months to settle in college and causing them distress.

Outcome:

Complaint upheld · Payment of £100 compensation

 

The Ombudsman’s approach:

The Ombudsman found fault as the Council had not consulted the college until after issuing the final EHCP. This is in breach of Section 39(2) of the Children and Families Act 2014. The Ombudsman found that had the Council consulted the college following the review in February it could have been named in the final statement issued in May. Therefore, it could have been done 2 months earlier and this caused unnecessary uncertainty and anxiety resulting in injustice.

The Ombudsman also found fault that the transition plan discussed in the Year 9 review was not monitored in later reviews.

The SEN Code of Practice 2015 required, for those attending post-16 provision in September 2015, that the EHCP must be completed by 31.5.15 (para 9.183). The Council had complied here in the sense it had issued a final EHCP but not one that had the college named. For subsequent years where there is a transition to or between post-16 institutions these should be completed by 31 March prior to September entry. For entry at other times of the year 5 months before date of entry (paras 9.180 & 9.181).

Comment:

The decision does not address whether the conversion and review in February 2015 should have been held sooner to allow consultation with the college at an earlier time nor does it set out the consequences of the failure to monitor the transition plan from 2010. The Ombudsman considered that the Council could have consulted with the college following the review in February 2015 and issued a Final EHCP by May 2015. It does not consider whether the Council would have done this, as the Council did not agree the funding for the provision until the second panel in June 2015. If the Council had named the college in a Final EHCP in May 2015 the Council would have been committed to providing that provision.

 

Buckinghamshire County Council (16 002 997)

 

Adult social care · Transition from children’s services · Failure to arrange services when young person turned 18 · Decision date 3.1.17

 

Facts:

Mr X was due to transfer from children’s services to adult services once he reached age 18 in August 2016.

He received respite care as a child and would need a new respite care placement when he became 18.

The Council started his transition process in October 2014, but it was not pursued and there was no further action until March 2016.

At that point the Council was unable to get plans in place for his transition when turned 18.

The Ombudsman stated that the Council was aware of the need to plan for Mr X almost 2 years in advance. It should have been able to ensure a new respite placement in good time.

Outcome:
Complaint upheld · Payment of £2817.50 compensation, most of which was for missed mentoring sessions and there was a sum of £250 to both Mr X and his sister for distress caused.

 

The Ombudsman’s approach:

The Ombudsman found that the Council was at fault for not arranging respite care in August 2016 but also concluded that the fault ended when the Council offered alternative placements and direct payments in September 2016.

 Mr X’s sister who cared for him would have accepted direct payments for a placement that she felt suitable. The sister did not consider the placements offered suitable for his assessed needs.

The Ombudsman declined to express a view on whether that decision was correct or not but did not find fault from September 2016 onwards.

Comment:

In other LGO decisions, a reasonable refusal of an offer has not brought the ‘fault’ to an end.

 

Nottinghamshire County Council (16 002 691)

 

Adult social care · Transition from children’s services · Agency actions following serious case review·

 

Facts:

This young person had been involved with statutory services from the aged of 12 and had increasing mental health difficulties. She became detained in several mental health settings during her adolescence and in 2013 she transferred from children’s mental health services to adult mental health services and the day after her 18th birthday she was moved to a low secure adult mental health unit. Her self-harm escalated leading to her taking her own life.

A coroner’s inquiry and serious case review found the staff did not fully realise the risk of suicide or that it was escalating. The Coroner also highlighted that a transfer to an adult unit the day after her 18th birthday was not in her best interests.

Following the serious case review that ensued, the woman’s parents complained that not enough had been done to improve health and social care services.

 

Outcome:

Decision date 30.11.16 · Complaint not upheld

 

The Ombudsman’s approach:

The Adult Serious Case Review made various recommendations in respect of the agencies that had been involved with this young person.

The Ombudsman ascertained from each what steps they had taken or were taking to respond to the recommendations of the report.

The Ombudsman’s approach was to consider what governance arrangements were in place to oversee the implementation of the recommendations and he was satisfied that such steps were in place. Therefore, the complaint about the SCR was not upheld.

The Ombudsman did not comment on the appropriateness of the recommendations nor whether they had been effective in improving health and social care services. The Ombudsman’s role is to investigate ‘maladministration’ and ‘service failure’. The quality of the work done would be subject to other inspection regimes relevant to the individual agencies.

 

Comment:

It is important to note that this is not a failed complaint in relation to the original failures in service: it was a complaint about a serious case review.

 

 

Kent County Council (16 006 992)

 

Adult social care · Transition from children’s services · Care leaver · accommodation · Decision date 29.11.16

 

Facts:

When she was a child Ms X received supported housing from the Council. To access the local housing authority discretionary housing scheme for care leavers the Council needed to send a nomination form to the local housing authority. The Council failed to do this and as a result Ms X was not able to obtain accommodation.

 

Outcome:

Complaint upheld · Compensation of £1500

 

Comment:

The Council acknowledged the error and offered £1500 in compensation but, as it was not the local housing authority, it could not provide a remedy in terms of housing.

Following an approach by the Ombudsman the local housing authority, although not at fault, helpfully agreed to include the care leaver in the housing scheme for that year.

 

Northamptonshire County Council (16 005 582)

 

Adult social care · Transition from children’s services · Adequacy of transition plan · Decision date 17.11.16

 

Facts:

The young person, Y, was provided with services under Section 17 of the Children Act as a child in need by Northamptonshire County Council and he had a child in need plan.

At 14 he was transferred to the transition team who were responsible for young people from age 14 to 25.

If there were minor changes needed to the existing core assessment and child in need plan the team would produce a new Transition Care Plan incorporating the support in the child in need plan/core assessment.

The Council did review this young person’s care plan following a complaint regarding the lack of specific detail and produced a more detailed plan.

The parents complained that something called a Transition Care Plan by the council should detail the support and provision to meet his eligible needs.

Outcome:

Complaint not upheld

 

The Ombudsman’s approach:

The Ombudsman found that certain details could be added to the plan but the absence did not result in injustice. The Ombudsman considered that it would be helpful if the Council added to the plan were the social worker’s name, the date and that the frequency of visits by the allocated worker.

Comment:

The decision does not specifically engage with whether what was wanted by the parents was a Transition Assessment under the Care Act. Rather, the report seems to accept that since the boy who was the subject of the complaint was 16, then what the council called a Transitions Care Plan was not referring to any statutory requirement under the children’s or the adults’ legal framework.

Without more information this was not an inappropriate finding, we feel.

 

 

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“People’s relatives aren’t allowed to be paid out of a direct payment”

This is not a myth – not a complete one, anyway.

But if that is what one is told by a council’s member of staff, one needs to think quite hard and check out the regulations.

If one looks at the Care Act Direct Payment regulations, one finds that there is a particular condition that is applicable to all direct payments – that is, one that the council must apply: it is that the payment not be used to pay anyone for care and support from specified categories of people, listed in the regulations.

It is thought that the rules are most likely based on the public policy that there’s no need to pay relatives for that which they would willingly do for free, out of ordinary love and affection.

The point here though is that no relative’s willing and capable informal care can be assumed 24 hours a day; people have to take difficult economic decisions in this day and age, and a carer’s interest in working is a statutory part of any carer’s assessment.

Who is presumed forbidden?

Spouses and cohabitees, for instance, are not able to be paid to do the care. The rules do not distinguish between that relationship and a separated spousal relationship, and the rule applies regardless of where one’s spouse or cohabitee lives.

Parents living in the same household aren’t allowed to be paid for care, either.

Stepsons and daughters are prohibited, but not the step parents of anyone, where the step parent has taken over from the natural parent, now deceased.

We think that that reflects the position that one is not in fact a step parent, once the step child is over 18.

If one is married to or living with the parent of an adult on a direct payment however, one is prohibited then as a step-parent.

If one is living in the same household as a friend, there’s no rule against that being a commercial arrangement out of the direct payment, in the council based system, although it is different for a personal health budget, oddly enough.

If you are a relative on the list but NOT living in the same household, there is no rule against that sort of a paid arrangement, either.

In all cases where the prohibition applies, however, a discretion may be exercised to permit it, if it is necessary. The council is the judge of that, subject to judicial review, eg for taking an extreme view of what necessary should mean.

Public law principles require a council refusing permission to a person to spend the DP on a prohibited person, to state its reasons, and to make sure that they are rational reasons, after taking all relevant considerations into account.

It owes human rights in relation to that thinking, too, and must promote the well-being of the client.

Health budget rules are a little different

When the regulations on direct payments in the NHS (for CHC and some other services) were issued in 2013, there were, at first, NO rules about close relatives doing the work at all, and being paid out of the budget, but this was by mistake.

The regulations were then amended in the same year to say that a health body may only permit an individual living in the same household as the patient, a family member or friend being paid out of the budget, if this was necessary. However, this was interpreted by some clinical commissioning groups as placing a restriction on paying family members or friends who were not living in the same household as the patient, contrary to the government’s intention.

So the regulations were amended again in 2017 to ban paying a connected person to meet the needs, unless it is necessary.

However, a presumptively banned connected person is defined ONLY as one who is living in the same household, meaning that if a person is not living in the same household, it does not matter that they are close relatives, (just as with council direct payments) or even spouses (unlike direct payments from councils).

 

 

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