London Borough of Hillingdon (17 016 412)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 17 Apr 2019

The Ombudsman's final decision:

Summary: Mrs F complains the Council failed to provide the care and support to meet her son’s eligible care needs. The Ombudsman has found fault causing injustice. The Council has agreed to apologise, make a payment and consider how to meet his needs.

The complaint

  1. Mrs F complains the Council has failed to provide the care and support needed to meet her son’s eligible care needs. In particular she complains direct payments and support with travel to college were not provided.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I spoke to Mrs F about her complaint and considered the information she sent, the Council’s response to my enquiries and:
    • The Care Act 2014 (“the Act”)
    • The Care and Support Statutory Guidance 2014 (“the Guidance”)
    • The Care and Support (Eligibility Criteria) Regulations 2014 (“the Regulations”)
  2. I issued two draft decision statements and considered Mrs F’s and the Council’s comments on them.

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What I found

  1. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.

Care and support plan

  1. Where local authorities have determined that a person has any eligible needs, they must meet those needs. The Act says councils must provide a care and support plan which sets out the person’s needs, what they want to achieve, which needs the council will meet and how they will meet them. The Council’s website says the person will receive a copy of the care and support plan
  2. The Guidance says the plan should reflect the individual’s wishes and the person should be given every opportunity to influence the plan, with support if needed.

Personal budgets

  1. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. The council should share an indicative amount at the start of care and support planning.

Direct payments

  1. A personal budget can be administered as direct payments. These payments are made to individuals who ask for one to enable them to commission their own care and support. Direct payments can be used to employ a personal assistant/support worker to help someone attend leisure activities.
  2. After considering the suitability of the person requesting direct payments, the local authority must decide whether to provide a direct payment. In all cases, the local authority should consider the request in as timely a manner as possible.
  3. The Guidance says councils must provide interim arrangements to meet care and support needs whilst direct payments are being arranged.

Financial assessments

  1. Where a local authority arranges care and support, it may charge the adult. Where a local authority has decided to charge it must carry out a financial assessment to determine what the person can afford to pay.
  2. If the financial assessment finds the person has resources above the financial limits, or if the person does not wish to undergo a financial assessment, the local authority may charge the person for the full cost of their care and support. However, the council remains responsible for meeting needs. This means the council may for example, make a direct payment which may be a paper based exercise. How someone pays for their care and support must not influence whether the council fulfils its duty to meet their needs.
  3. The Council’s website says financial assessments will be reviewed annually or if there is a change in circumstances.
  4. The Guidance says councils should act promptly to meet peoples needs and the lack of a financial assessment must not be a barrier to action. Neither is it necessary to complete the assessment before taking action.

Education, Health and Care Plans

  1. A child or young person aged 19 to 25 with special educational needs (SEN) may have an Education, Health and Care Plan (EHC plan). This sets out the young person's needs and what arrangements should be made to meet them. The Council is responsible for making sure that all the arrangements specified in the EHC plan are put in place. Parents may appeal to the SEND Tribunal against the provision specified in an EHC plan, including the named placement.

What happened

  1. Mrs F’s son, X, is an adult with autism and learning difficulties. He has significant difficulties with communication, but is able to express his wishes and feelings. X has an EHC plan.
  2. Mrs F appealed to the SEND Tribunal in December 2015 to name School 1 in X’s EHC plan. School 1 is a mainstream independent school that is out of the Council’s area. In January 2017 the Tribunal upheld Mrs F’s appeal. Its decision says Mrs F “had agreed to pay for transport to and from School 1”.
  3. The Council sought a stay on X attending School 1. Following an application by Mrs F, the Upper Tier Tribunal lifted this stay and X returned to School 1 on 2 May 2017, funded by the Council.
  4. Mrs F asked the Council to assess X’s care and support needs in June 2017. A financial assessment was completed in July 2017. This found X was receiving benefits and had no savings. The Council says Mrs F did not return all the documents it requested.
  5. A social worker completed the care and support needs assessment on 12 September 2017. The assessment found X needed support to access the community at weekends and during school holidays. This was to be provided by a family friend acting as X’s personal assistant, paid for by direct payments. The assessment did not say how many hours of support X needed. The assessment gives an indicative amount of the cost of X’s care but does not include a personal budget.
  6. The assessment also found X needed support to travel to School 1, which was 60 miles from his home. Mrs F was transporting X, but the assessment says she asked for support with this as her health had deteriorated making it difficult to drive. Mrs F says she told the social worker she could not take X to school when she had hospital appointments and had applied for travel assistance from the Council’s school transport team.
  7. The social worker passed on the information about Mrs F’s health problems to the school transport team and sent Mrs F information about direct payments. There is no evidence an alternative package of care was considered whilst Mrs F was liaising with potential personal assistants. The Council did not produce a care and support plan.
  8. The Council told Mrs F on 25 September 2017 that X was not eligible for school travel assistance as “the tribunal decision was to allow the placement as long as the parents provided transport”.
  9. In November 2017, the social worker asked Mrs F if she had spoken to the family friend about being X’s personal assistant and to confirm how many hours of support X needed. The family friend said he was unsure he could go ahead with the role. Mrs F identified an alternative person, who told the Council on 24 November 2017 she could provide the support. The social worker agreed to send X’s care and support plan to the direct payments team. There is no evidence this was done.
  10. The case was transferred to a new social worker in December 2017, who started arranging a home visit. In response to my enquiries, the Council said “a re-assessment was felt to be appropriate given the amount of time that had passed from the initial assessment.”
  11. The finance team told the social worker that if a package of care was not in place by mid-January 2018 a new financial assessment would be required.
  12. The new social worker visited on 2 January 2018. Mrs F again asked for support for X to travel to school. The social worker advised Mrs F that school transport could not be provided by social care and she should apply to the school transport team. The social worker agreed to arrange a direct payment to enable X to access the community at weekends and in school holidays. There is no evidence this was done.
  13. A new EHC plan was issued. The social care section was not updated to reflect X’s needs from the September 2017 care and support assessment.
  14. Mrs F complained to the Council in February 2018 that the direct payments agreed in September 2017 had not yet been set up.
  15. In its March 2018 response to Mrs F’s complaint, the Council accepted there had been a delay and apologised for this. It said the direct payment would be “progressed without any further delay.”
  16. A telephone care and support review was carried out which found X needed 10 hours a week support to access the community. It also found Mrs F needed support as a carer with six nights respite per year. I have seen no evidence a care and support plan or personal budget was produced or that this support was put in place.
  17. The Council asked Mrs F to complete a new financial assessment. The finance team scheduled home visits but these were cancelled as Mrs F was taking X to School 1. The Council says the direct payments could not be processed as the financial assessment had not been finalised, because it was awaiting documents from Mrs F. There is no evidence any care and support was provided to X whilst the Council waited for that information.
  18. The social worker left in May 2018 and the finance team closed the case as it had not received an updated financial assessment.
  19. On 25 July 2018 the Council reviewed the case and told Mrs F that X would have to pay the full cost of his care until a financial assessment was completed. It offered a care package commissioned from a care provider. Mrs F expressed an interest in this, as X was home for the summer holidays. The Council says this was not progressed as it could not make contact with Mrs F. The case records show Mrs F called the Council on 4 August 2018. The case was allocated to a new social worker, who tried to arrange a visit to Mrs F.
  20. The Council agreed to maintain X’s EHC plan and named School 1 from September 2018. The social worker spoke to Mrs F on 4 September 2018 but it was not possible to arrange a visit as Mrs F was taking X to School 1.
  21. Mrs F complained to the Ombudsman in October 2018. She said she had had to “sacrifice all my hospital appointments” as she had to drive X to School 1. She had been discharged from three NHS clinics for not attending follow-up appointments. Mrs F said this had caused her health problems to worsen.

Events since complaining to the Ombudsman

  1. The financial assessment was completed on 1 November 2018 and found X’s assessed contribution was £47.11 per week.
  2. A social worker visited on 14 November 2018 to progress care and support planning. The support plan consisted of 5 hours support term-time for 38 weeks and 10 hours support non-term time for 14 weeks. The Council offered Mrs F a commissioned package of community support and respite for Mrs F.
  3. Mrs F refused the respite care as she considered it unsuitable for X and she also refused the commissioned service. Mrs F says this was because the care providers could not offer enough flexibility. She therefore again requested direct payments.
  4. A further financial assessment started in February 2019. In response to my first draft decision, the Council said it could not progress this as documents had not been provided. X continues to be without support.

My findings

  1. The care and support needs assessment in September 2017 and review in March 2018 identified that X had eligible needs. He required support to access the community and education. However, I have seen no evidence a care and support plan was produced to set out how this support would be provided or what his personal budget was. In response to my first draft decision, the Council said a care and support plan would only have been an administrative exercise because no service (or direct payment) was being provided. The Act says councils must produce a care and support plan. I therefore find fault.
  2. In September 2017, the social worker was waiting for a decision by the school transport and SEN teams on whether school transport would be provided. Mrs F considers the Council should have provided transport for X to School 1. My role is not to determine what support X required or how to provide this. However, access to education may be a social care need. Once the Council knew X was not eligible for school transport, it should have considered how X would access education on the days Mrs F had hospital appointments. It should have considered whether a personal assistant could have been used to take X to School 1 on those days. It did not do this. I find this to be fault, as X’s needs were not properly considered in a care and support plan.
  3. The Council has accepted there was a delay in processing the direct payment. This was partly due to Mrs F trying to find a suitable personal assistant. After January 2018 it was because the Council was awaiting a new financial assessment because the July 2017 one was incomplete.
  4. In response to my first draft decision, the Council said it was not required to provide direct payments to X because he had been deemed a full cost payer as the financial assessment was incomplete.
  5. The Guidance says councils should act promptly to meet people’s needs. A completed financial assessment Is not required before support its put in pace. The Council should have paid the direct payments and re-claimed them later, if X was found to be a full cost payer. I find it was fault not to set up the direct payments.
  6. The Guidance also says councils must provide interim arrangements to meet care and support needs whilst direct payments are being arranged.
  7. I have seen no evidence the Council tried to find alternative packages of care to support X whilst a personal assistant was being arranged or whilst the financial assessment was being completed. Indeed, this was not offered until July 2018. This is fault.
  8. Some of the delays were caused by changes in social workers. Each time the case was allocated to a new social worker, an attempt was made to visit Mrs F and X at home. This proved difficult as Mrs F was taking X to School 1, 60 miles away. I have seen no evidence there was any consideration as to whether to visit Mrs F at School 1.
  9. I can see no evidence that X’s needs or circumstances had changed in a way that would have affected that assessment and I find it was fault for the Council to delay developing a care plan based on the September 2017 needs assessment.

Did the fault cause injustice?

  1. I have found a failure to produce a care and support plan, delay in processing direct payments, and a failure to put in place interim arrangements whilst awaiting a financial assessment or a personal assistant.
  2. This meant X was without support to access the community at weekends and during the holidays from October 2017 to November 2018. It also meant Mrs F had to provide that support and had no respite.
  3. Mrs F also had to miss hospital appointments and her health suffered as there was no contingency arrangement for enabling X to access education. It remains unclear how X will access education when Mrs F is unable to take him.
  4. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.

Agreed action

  1. To remedy the injustice caused, the Council has agreed to, within a month of my final decision:
    • Apologise to X and Mrs F for the faults identified
    • Pay X £500 to acknowledge the distress caused by failing to meet his eligible needs for over a year
    • Pay Mrs F £750 to acknowledge the impact on her of failing to meet X's needs
    • Consider how X will access education when Mrs F is unable to take him to School 1

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Final decision

  1. There was fault by the Council which caused injustice to X and Mrs F. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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