London Borough of Lambeth (22 000 794)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 20 Dec 2022

The Ombudsman's final decision:

Summary: There was fault in the Council’s actions. The Council has not carried out a mental capacity assessment of Mr C and has not considered alternative accommodation for him in his care plan. There were delays in the provision of suitable transport for Mr C to go to college. The Council has also not provided Mrs B with a carer’s care plan. The Council has agreed to apologise, to provide the assessments and plans it should have provided and to provide a financial remedy.

The complaint

  1. Mrs B complains on behalf of her adult nephew, Mr C.
  2. Mrs B says the Council:
    • Has not carried out a mental capacity assessment of Mr C, despite agreeing that this was necessary.
    • Has not properly considered short or long-term alternative accommodation for Mr C, despite many requests.
    • Has not properly assessed Mr C’s finances when it calculated his contribution to the costs of his care package.
    • Has not provided her with a care plan as a carer or paid the carer’s grant.
    • Delayed providing suitable transport for Mr C to go to college.

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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 an organisation’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 have discussed the complaint with Mrs B. I have considered the evidence that she and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

  1. The Education Act 1996 and the statutory guidance on ‘post-16 transport and travel support to education and training’ set out the Council’s duties relating to transport for people receiving education who are over 16 years old.
  2. The Education Act 1996 says, if a person is a relevant young adult (an adult with an Education, Health and Care plan) then the Council ‘must make such arrangements for the provision of transport and otherwise as they consider necessary, or as the Secretary of State may direct’ for certain purposes. (Education Act 1996, section 508F (1)) Those purposes are:
    • 1. To facilitate the attendance of adults receiving education at institutions maintained or assisted by the authority and providing further or higher education (or both), or within the further education sector. (Education Act 1996, section 508F (2))
    • 2. To facilitate the attendance of relevant young adults receiving education or training at institutions outside both the further education sector and the wider higher education sector, but only in cases where the Council has secured for the adults in question the provision of education or training at the institution in question, and the provision of boarding accommodation. (Education Act 1996, section 508F (3))

Council’s post-16 travel policy

  1. The Council’s travel assistance policy for young people over the age of 16 says that young people with difficulties and disabilities who are 19 years old or older should contact the Council’s Adult Social Care Department for consideration for travel support.

Mental Capacity Act 2005

  1. The Mental Capacity Act 2005 and the Code of Practice 2007 are the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves.
  2. The Age generally applies to people aged 16 or older, but some parts only apply to people over 18.
  3. The Act says a person must be presumed to have capacity unless it is established that he does not.
  4. A person’s capacity to make a specific decision should be assessed if their capacity is in doubt or concerns have been raised about their capacity.
  5. Any decision made on behalf of a person who lacks capacity must be in that person’s best interests.

Care Act 2014

  1. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.

Care plan and personal budget

  1. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which sets out the costs to meet the needs.

Financial assessment

  1. Councils must carry out a financial assessment if they decide to charge for the care and support.
  2. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year.

Disability related expenditure (DRE)

  1. In addition, where a person receives benefits to meet their disability needs that do not meet the eligibility criteria for local authority care and support, the charging arrangements should ensure that they keep enough money to cover the cost of meeting these disability-related costs. The Care and Support Statutory Guidance sets out a list of examples of such expenditure.

Council’s policy on DRE

  1. The Council’s policy on DRE says the Council provides a flat rate of £10 DRE to anybody who receives disability related benefits.
  2. If a person’s DRE is higher than £10, then the Council will consider the evidence.
  3. This includes costs of:
    • ‘Extra transport costs not covered by your mobility allowance.’

Carer’s assessment

  1. Where an individual provides care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment.
  2. In considering the needs of the adult needing care, the local authority must take into consideration any needs that are being met by a carer. Provided the carer remains willing and able to continue caring, the local authority is not required to meet those needs.
  3. The Care Act 2014 makes clear the local authority may meet the carer’s needs by providing a service directly to the adult needing care. In these cases, the carer must still receive a support plan which covers their needs, and how the Council will meet them.
  4. Where a service is provided directly to the adult needing care, even though it is to meet the carer’s needs, then that adult would be liable to pay any charge and must agree to doing so. Section 14 of the Act makes clear that where the needs are met by providing care and support direct to the adult needing care, the charge may not be imposed on the carer.
  5. Decisions on which services are provided to meet carers’ needs, and which are provided to meet the needs of the adult for whom they care, will therefore impact on which individual’s personal budget includes the costs of meeting those needs. Local authorities should make this decision as part of the care planning process, in discussion with the individuals concerned, and should consider whether joint plans (and therefore joint personal budgets) for the 2 individuals may be of benefit.
  6. Local authorities should consider how to align personal budgets where they are meeting the needs of both the carer and the adult needing care concurrently. Where an adult has eligible needs for care and support, and has a personal budget and care and support plan in their own right, and the carer’s needs can be met, in part or in full, by the provision of care and support to that person needing care, then this kind of provision should be incorporated into the plan and personal budget of the person with care needs, as well as being detailed in a care and support plan for the carer.

What happened

  1. Mr C is an adult man who has additional needs for care and support. He lives with his aunt, Mrs B who provides support to Mr C. Mr C had an Education, Health and Care Plan (EHC plan) dated September 2020 and Mrs B had made an appeal to the SEN Tribunal in respect of the plan. Mr C also had a care plan under the Care Act 2014.
  2. In 2019 the Council promised Mrs B on several occasions that it would carry out a mental capacity assessment of Mr C. The Council said it was not certain whether Mr C had the capacity to make decisions regarding where he should live or stay if he was not staying with Mrs B and therefore his capacity in this regard had to be assessed.

Mr C’s care plan – February 2021 (updated October 2021)

  1. Mr C’s EHC plan provided him with a place at a college and a work placement at a café. At the time of writing the plan (February 2021) Mr C was not attending college. Mr C’s care plan said he was entitled to direct payments to pay:
    • 6 hours for his work experience at the cafe.
    • 3 hours for travel to and from the cafe.
    • 8 hours for 1:1 support with independent living skills. Hours could be used flexibly and could include graphic design sessions.
    • 8 hours for travel to and from college 4 days a week (this was added in October 2021).
  2. The plan said that, in terms of travel, Mr C could use the direct payments to pay for a personal assistant to escort him or he could use it for a taxi instead. Mr C could top-up the funding he received for travel with his PIP benefits.
  3. The plan did not say what the personal budget was.

Carer’s assessment of Mrs B – April 2021

  1. The Council carried out a carer’s assessment of Mrs B in April 2021. Mrs B said she felt ‘burnt out’ because the time when Mr C would normally go to college was no longer available to her, so she was providing him with support round the clock.
  2. Mrs B said she would like to spend Friday nights at her partner’s home, have 3 or 4 weekends away for her Scout role and wanted support to access training and return to leisure activities.

Carer’s eligibility criteria for Mrs B – April 2021

  1. The Council’s eligibility document said Mrs B was eligible for carer’s support and said ‘consistent and ongoing respite’ was important for Mrs B to enable her to continue with her caring responsibilities.
  2. The assessment said a ‘carer’s grant to be commissioned in order to enable [Mrs B] to have a break from her caring role’ but did not specify an amount. The Council did not provide a carer’s support plan or personal budget.

Mr C’s EHC plan – May 2021

  1. Mrs B’s appeal of the EHC plan was heard and Mr C was offered the college place that he had requested. In terms of Mr C’s adult social care needs, the EHC plan said Mr C would receive direct payments to access activities within the community.

Correspondence – April 2021 onwards

  1. In April 2021 Mrs B told the Council that Mr C would return to his work placement at the café one day a week and needed a taxi to transport him to and from the placement. She said she had asked for this in December 2020.
  2. In May 2021 Mrs B informed the Council that Mr C would start college in September 2021 and needed transport. The social worker confirmed the Council’s adult social care team would organise transport.
  3. The social worker told Mrs B in June 2021 that she would carry out a mental capacity assessment (MCA) regarding future accommodation options for Mr C.
  4. Mrs B’s solicitor wrote to the Council in July 2021. She explained that Mr C could not use public transport because of his disabilities. It was not practical for Mrs B to escort him in the taxi to his work placement as the travel was 1.5 hours each way. This meant that Mrs B was forced to wait at the venue until Mr C’s session ended as there was not enough time for her to travel back and forth twice a day.
  5. The solicitor also said that the Council’s delay in completing the MCA was ‘unacceptable’ and was linked to the issue of offering respite overnight stays to Mr C.
  6. The solicitor said it was the Council’s position that the 8 hours of 1:1 support which covered Mr C's needs, also gave Mrs B respite from her caring role. This was the reason why the Council would not provide Mrs B with a separate care plan as a carer. Mrs B’s solicitor pointed out that Mrs B had also asked for weekends off with her partner and time to carry out her scouting duties. These needs had not been met in any care plan.
  7. Mrs B chased the Council in August 2021 about the transport and the MCA.
  8. The Council responded in September 2021 and said it had agreed an increase of 8 hours direct payment for a personal assistant to escort Mr C to and from college 4 days a week. In terms of travel to the work placement, Mrs B could use the direct payments to pay for a taxi instead of an escort and top-up the cost if it cost more than the direct payments. In terms of the MCA, the Council said Mrs B had withdrawn this request.
  9. On 15 October 2021 Mrs B explained to the Council that Mr C needed a specialised taxi service where the drivers were trained in supporting students with SEN. If Mr C used a regular taxi service, then he also needed an escort. Mrs B was escorting him as the Council had not provided an escort.
  10. The college contacted the Council on 2 November 2021 and asked the Council to set up transport. They said Mr C needed to travel with a consistent driver who knew how to support students with SEN rather than a private taxi firm.
  11. The Council responded and said it was obtaining quotes from taxi providers as the plan was for the Council to provide the service (instead of providing direct payments). It would then have to ask its funding panel for approval.
  12. Mrs B contacted the Council in December 2021 and said she was still escorting Mr C to and from his work placement and college.
  13. In January 2022 Mrs B said Mr C wanted her to continue to escort him in the morning so he only needed an escort in the afternoon. Mrs B would also travel to and from the work placement so he did not need an escort for that day.

Mr C’s Care plan – March 2022

  1. The Council reviewed Mr C’s care plan in March 2022. The plan included funding for:
    • 5 hours for his work experience at the cafe.
    • 2.5 hours transport for travel to and from the cafe. Mrs B would escort him.
    • 8 hours for travel to and from college 3 days a week.
    • Mrs B would escort Mr C to the college, but an escort was needed for the return journey. The total requirement of funding was 3 hours.
    • 8 hours for 1:1 support with independent living skills. Hours could be used flexibly and could include graphic design sessions.
  2. The Council said the personal budget was £331 a week. This included 25 hours support (my calculation was 26.5) presumably at a rate of £13 per hour.
  3. The Council started to provide the transport as set out in the plan in March 2022. Mrs B said that there were still some incidents, even after March 2022, where the transport provider was not appropriate. She says she made safeguarding referrals regarding those incidents. She also said that, although the provision was in place for 8 hours 1:1 support, the agency was only able to provide 4 hours support so that was the support that was provided.

Mrs B’s complaint – March 2022

  1. Mrs B complained to the Council and said:
    • The Council had told her that it would carry out an assessment of Mr C’s mental capacity but had failed to do so.
    • The Council had also failed to make plans of where Mr C could live or stay to give Mrs B respite or as a longer-term alternative.
    • Mr C’s work placement should be paid by the SEND funding, not adult social care.
    • The agency which provided 1:1 support could only provide 4 hours 1:1 support so the direct payments should be reduced by that amount.
    • She was concerned that this had increased Mr C’s contribution and said Mr C could not afford the contribution.
    • The Council failed to put in place appropriate transport for Mr C to attend college in September 2021.
    • The previous social worker had not sent the carer’s assessment to her, and a carer’s support plan had not been completed.

Council’s response – April 2022

  1. The Council responded to Mrs B’s complaint and said:
    • A mental capacity assessment to decide whether Mr C could make decisions about where to live did not need to be carried out unless a decision had to be made where Mr C wanted to live. A mental capacity assessment was time and decision specific.
    • The Council had now proposed a place for respite stays for Mr C and the social worker would carry out a mental capacity assessment in relation to this.
    • It had contacted the SEND team to decide whether the work placement could be funded by SEND and would update her when the outcome was known.
    • Mr C’s contribution was based on his income and not on the amount of support he received so the increase in his support package would not affect his contribution.
    • The social worker would send a DRE form to Mrs B to determine whether the financial assessment fully considered Mr C’s DRE costs.
    • The social worker had now resolved the problems with Mr C’s travel to college and Mrs B was in agreement with the plan that was now in place.
    • The social worker would review the carer’s assessment and would discuss a carer’s support plan with Mrs B if a plan was needed. Often, support for the carer would be reflected in the supported person’s care plan.

Review of Mr C’s needs – April 2022

  1. The Council reviewed Mr C’s needs in April 2022 and noted the following:
    • Under the capacity section, the social worker had ticked ‘yes’ to the question whether Mr C had difficulty communicating or understanding.
    • Mrs B did not think that Mr C should pay a contribution towards the respite care that she was entitled to as Mr C’s carer. She would ask for these hours to be stopped if the Council did not change this. The social worker said she would raise this with her manager.

Financial assessment – May 2022

  1. The Council assessed Mr C’s finances in May 2022 and wrote to Mrs B to inform her of the outcome.
  2. Mr C’s weekly benefit income was £295.58. The Council disregarded Mr C’s PIP Mobility payment income in its calculation of the contribution. The Council said Mr C’s minimum income guarantee was £136.45 and his contribution towards his care costs was £54.08.

Mr C’s care plan – June 2022

  1. The Council reviewed Mr C’s care plan in June 2022. The plan remained the same except that it reflected the fact that Mr C was only receiving 4 hours community support because the agency did not have capacity to provide 8 hours.
  2. The personal budget was reduced to £178.20. The plan noted that the personal budget still included the cost of the café although it had been agreed that the work placement at the café would be paid from the SEND budget.
  3. The personal budget calculation included £65 for the café and £107 for 8 hours of 1:1 support. It did not include the cost of the transport.

Carer’s assessment – August 2022

  1. Mrs B said she had been attending Scouts on Monday afternoons when Mr C received his community 1:1 support from the agency. However, she did not agree that this support was included in Mr C’s care plan and that he paid a contribution towards this. The social worker explained that the amount of contribution was often still the same whether a support package increased or decreased.

Further information

  1. I asked the Council what the current position was in terms of Mr C’s funding. The Council said: ‘Currently, [Mrs B] indicated that she no longer requires direct payments to adult services fund to transport and SEN will be taking over the work placement and college.’
  2. I asked whether the Council had sent the DRE claim form to Mrs B as it had promised to do in its complaint response dated April 2022. The Council said it had not done so but said that the DRE information was included in the documents the Council sent with the financial assessment. Mrs B says the Council never informed her of DRE and she found this out through a disability organisation. Mrs B has not made a claim for DRE yet.


Mental capacity assessment / offer of respite accommodation

  1. The Council should start from the assumption that a person has the mental capacity to make a particular decision but should carry out an assessment of their mental capacity to do so, if there is doubt.
  2. My reading of Mr C’s needs assessment of April 2022 is that the Council was of the view that Mr C had capacity to make decisions about his care plan with assistance from Mrs B.
  3. However, throughout the correspondence, the Council also agreed that there was some concern whether Mr C had capacity to decide where he should live or stay overnight, if he was not living with Mrs B, either for respite or on a long-term basis. Therefore, an MCA was needed to decide whether he had capacity to make that decision. The Council frequently promised Mrs B that it would carry out this assessment, but then failed to do so. This was fault.
  4. I agree that an MCA was time and decision specific. But there were decisions that needed to be made in relation to Mr C’s accommodation needs. Mr C and Mrs B needed to know what his options were in terms of respite accommodation and to know what would happen if there was an emergency or if Mr C was unable to live with Mrs B. They repeatedly asked for this part of the care planning to be completed and the Council failed to do this. This was also fault. This was linked to the fact that the Council could not make these decisions without first carrying out an MCA of Mr C.
  5. I note that, in the complaint response to Mrs B dated 6 April 2022, the Council said it would ask the social worker to carry out the MCA and would make a referral for respite care. The Council has still not acted on those promises which is further fault.

Provision of transport

  1. I have firstly considered the Council’s duties regarding the provision of the transport, regardless of where the funding came from.
  2. I agree with Mrs B that there was fault. The Council agreed from the outset that transport was an eligible need for Mr C, so it then had a duty to properly assess that need and to provide the appropriate support to meet the need.
  3. Mrs B told the social worker in May 2021 that Mr C would start college in September 2021, so the Council had sufficient notice to assess Mr C’s need for transport and to put transport in place. However, when Mr C started college in September 2021, no transport had been organised.
  4. I note the Council then agreed, in September 2021 to provide Mr C with 8 hours of support for transport. The Council said Mr C could use this funding for a taxi or for an escort. He could use his PIP Mobility to top up the cost if the 8 hours of support was not sufficient.
  5. Mrs B repeatedly explained that Mr C needed a taxi and an escort because of his disabilities. Because the Council was only providing a taxi or an escort, she was accompanying Mr C and paying for a taxi.
  6. The Council then changed its position in March 2022 and said a taxi and an escort were necessary to meet Mr C’s needs. However, this decision could have been made earlier if the Council had assessed Mr C’s needs for transport properly earlier. The failure to properly consider this earlier was fault.

Mrs B’s care plan

  1. There was fault in the Council’s failure to provide a care plan for Mrs B as a carer. The Council assessed Mrs B’s needs as a carer in April 2021, but did not provide her with a care plan.
  2. The assessment set out Mrs B’s wishes, which was to spend Friday nights at her partner’s home and have 3-4 long weekends away for her Scout role, but the Council did not say whether these requests had been agreed. This was linked, of course to the Council’s failure to carry out the MCA of Mr C which then meant it could not make decisions regarding overnight respite care for Mr C.
  3. The 1:1 support was put in place to meet Mr C needs and Mrs B’s needs as a carer. The Care Act says councils can meet a carer’s needs by providing a service directly to the adult needing care. So therefore there is no fault, in principle, in including the provision in Mr C’s care plan. But the Guidance says that, even if this is the case, the Council would still need to provide a care plan to the carer which the Council failed to do.

Funding for the carer’s support

  1. Mrs B says the Council made the decision to combine the personal budgets without consulting her and Mr C. I agree the Council should have consulted Mrs B and Mr C before it made the decision.
  2. This was linked, of course, to the question of funding. Mrs B did not want Mr C to have to pay a contribution towards the cost of the 1:1 support as she said this support was meant to assist Mrs B, not Mr C.
  3. Firstly, as noted in paragraph 78, the 1:1 support benefitted both Mr C and Mrs B as Mr C received support with independent living skills and graphic design sessions. But the 1:1 support also gave Mrs B a break from providing support to Mr C.
  4. I agree with the point the Council made which was that, generally speaking, the contribution is based on a person’s income and not on the amount of support they receive or the cost of the support. The cost of the support would be relevant if the cost of the support was less than the contribution a person was expected to make.
  5. In other words, if a person’s contribution was calculated at £50 a week, it would not matter whether their care cost £100 or a £1,000 a week. Their contribution would be £50 a week. However, if their care cost £20 a week, then they would obviously only pay £20. So therefore most councils would add the cost of the support to a carer, in the care plan for the cared for person as it would not make a difference to the contribution.
  6. I note the Council has included the transport in Mr C’s care plan under the Care Act 2014. However, the Council should also have considered whether it had any duties in terms of transport to the college under the Education Act Section 508 F 2. The Council’s failure to do so was fault.
  7. This duty did not arise in relation to the work placement at the café, but the Council still had to consider whether this was a need to be met under the Care Act 2014, which it has done.

Personal budget

  1. There was fault in the Council’s failure to provide a personal budget with each care plan. The only care plan that had a personal budget that matched the care provided was the care plan dated March 2022.
  2. The personal budget in the care plan dated June 2022 did not include any transport costs even though transport was included in the care plan. It could be that the Council was confusing personal budget with direct payments as the transport to the college was directly funded by the Council from March 2022 onwards and not by direct payments. However, that should not affect the calculation of the personal budget.

Financial assessment

  1. In terms of the financial assessment, the Council should have provided Mrs B with the information about DRE so that Mrs B could provide evidence of DRE expenditure as part of the financial assessment. Its failure to do so is fault.
  2. I find no fault in the calculation itself, based on the information that the Council had. The Council has applied the disregards in terms of income, minimum income guarantee and DRE.
  3. I find no fault in the Council’s suggestion that Mr C could use his PIP mobility to top-up his transport costs which were funded from the ASC funding. Most councils take this position as the purpose of the PIP mobility benefit is to assist in transport. It was also in line with the Council’s DRE policy. Any costs not covered in the care plan and not covered by the PIP mobility, may have to be considered as a DRE so this could affect the amount of contribution that Mr C had to pay.

Injustice and remedy

  1. Mrs B and Mr C have suffered an injustice through the Council’s failure to carry out the MCA as it is not known whether Mr C has capacity to make decisions about accommodation. If Mr C is assessed as lacking capacity in this area, it will affect how decisions are made. The lack of MCA also meant the Council could not progress decision making in this area. The Council should therefore carry out the MCA. Once it has done so, it should review the care plan in terms of short or long term options for Mr C’s accommodation.
  2. Mrs B has suffered an injustice by the delay in providing the taxi and escort as she provided the support.
  3. Mr C and Mrs B may also have suffered a financial injustice. The Council’s failure to consider its duties under the Education Act may affect Mr C’s personal budget if the Council decides that the travel to the college should be funding from its SEN budget rather than ASC. Also, the Council has not considered any evidence in relation to DRE which may affect the contribution Mr C has to pay.
  4. Mrs B has suffered an injustice from the lack of care plan as a carer. The Council has also not said what the carer’s grant is or paid the carer’s grant.

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Agreed action

  1. The Council has agreed to take the following actions within two months of the final decision. It will:
    • (1) Carry out a mental capacity assessment of Mr C to decide whether he has capacity to make decisions about accommodation.
    • (2) Consider its duties of transport to and from the college under the Education Act and provide Mrs B with a written decision in relation to this.
    • After it has carried out recommendations 1 and 2, the Council should review Mr C’s care plan. The care plan should reflect the outcome of the decisions made in recommendations 1 and 2.
    • The Council should provide a properly calculated personal budget for the revised care plan.
    • Review Mr C’s financial assessment once it has provided Mr C with a revised care plan and personal budget (as the revised personal budget may affect the financial assessment). The Council will take into consideration any evidence Mrs B wishes to provide regarding DRE. If Mr C’s contribution reduces because of the revised financial assessment, then the Council will backdate this to April 2021 (when Mr C restarted his work placement).
    • Provide Mrs B with a care plan as a carer and say what the carer’s grant is.
    • Pay the carer’s grant promised in the April 2021 carer’s assessment of Mrs B.
    • Apologise in writing to Mrs B and Mr C for the faults identified.
    • Pay Mrs B £500 for the delay and lack of provision in providing the appropriate transport and the delay carrying out the required assessments

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Final decision

  1. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman

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