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Portsmouth City Council (18 015 989)

Category : Adult care services > Other

Decision : Upheld

Decision date : 15 Jan 2020

The Ombudsman's final decision:

Summary: Mr X complains that the Council would not add PhD study to his pathway plan, delayed repaying expenses and refused to cover other expenses. He says he is out of pocket by over £1,000. The Council did not deal adequately with his complaint and inappropriately used its vexatious complainants’ policy. The Ombudsman finds the Council was at fault in delay repaying Mr X. The Council has agreed to pay Mr X interest on the money owed. It will also repay any shortfall on the cost of holiday accommodation if Mr X provides the necessary information and will review the way it deals with Mr X.

The complaint

  1. The complainant, whom I shall refer to as Mr X, complains that the Council:
    • failed to agree an adequate pathway plan including his PhD study plans.
    • delayed repaying him for some expenses and refused to repay, or pay for, other expenses.
    • did not deal adequately with his complaint.
    • inappropriately used the vexatious complainants’ policy.
  2. Mr X says he is out of pocket by more than £1,000.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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)
  3. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

  1. I considered information from the Complainant and from the Council.
  2. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

Leaving care

  1. The law and government guidance set out councils’ legal duties to provide ongoing support for children leaving care.
  2. Councils have a responsibility to plan continuing support for all care leavers. This duty continues until they reach age 21. If the Council is helping them with education and training, the duty continues until age 25 or to the end of the agreed training (which can take them beyond their 25th birthday).
  3. Councils should appoint each care leaver with a personal advisor, and each care leaver should have a pathway plan. The personal advisor will act as a focal point to ensure the care leaver is provided with the right kind of support. The pathway plan should be based on a thorough assessment of the person’s needs. Plans should include specific actions and deadlines detailing who will take what action and when. They should be reviewed at least every six months by a social worker.
  4. Pathway plans should continue for all care leavers continuing in education or training. The plan should include details of the practical and financial support the council will provide.
  5. Councils must pay a bursary to care leavers who are undertaking a recognised course of higher education.
  6. In addition to support with first degree courses, councils should set out how they will support young people to undertake post graduate courses. Following a needs assessment, councils may consider contributing to post graduate courses and helping young people to identify financial support and other resources.
  7. As they mature and develop, support for former relevant young people should enable and empower them to take increasing control over the pathway planning process.
  8. Councils must place an early emphasis on financial literacy and financial capability skills. The financial policy should set out what entitlements young people have and what conditions are attached to these. It should also be clear about the treatment of young people’s own funds wherever these come from.

Former relevant child

  1. A former relevant child is a person aged between 18 and 25 who was previously looked after by the council. A former relevant child attending education or training under the age of 25 should receive advice and support from a personal adviser (PA) from the council, who will keep their pathway plan under review.
  2. Councils must provide former relevant children in further education or training with financial assistance, for their educational or training needs. This does not include a duty to provide accommodation, aside from during vacations.
  3. If a former relevant child advises the council they wish to pursue a programme of education before they are 25, the council must continue providing a personal adviser, complete an assessment and develop a pathway plan.
  4. Councils should continue the appointment of the personal adviser and keep the pathway plan under regular review until the programme of education is complete.
  5. Councils have a duty to “give assistance” such as:
    • Contributing to expenses incurred in living near the place of education
    • Making a grant to meet expenses connected with education.

Pathway plan

  1. A pathway plan should look at how to meet the young person’s needs and effectively make the transition from care to living independently. It should contain a detailed plan for the education or training of the young person and how the council will help them with employment or other purposeful activity. It should contain clear, specific actions and deadlines; who will take what action and when, to support the young person’s progress. The pathway plan should be tailored to the individual so they can progress at a pace to suit them and the young person should be fully involved in developing the plan. It should be reviewed at least every six months by a social worker.
  2. The pathway plan should also include information about the young person’s career aspirations and ambitions. It should reflect high aspirations for the young person and allow them the chance to have more than one opportunity to succeed.

Keep on caring

  1. In 2016, the government issued “Keep on Caring: Supporting Young People from Care to Independence”; a new strategy for care leavers. The focus of the strategy is to support care leavers to achieve five key outcomes:
    • be better prepared and supported to live independently.
    • improved access to education, employment and training.
    • stability in their lives and feel safe and secure.
    • improved access to health support.
    • financial stability.

Corporate parenting

  1. The Children and Social Work Act (CASWA) 2017 introduced corporate parenting principles including:
    • To promote high aspirations and seek to secure the best outcomes
    • To prepare those children and young people for adulthood and independent living.
  2. Councils must have regard to the principles when carrying out their functions in respect of looked after children. They should also ask the question “Would this be good enough for my child?”

The local offer

  1. The Council has a guide for leaving care available on its website. This says “if you wish to go on to Doctoral level study we will expect you to self-fund by utilising paid studentships, employment and government loans. Your PA will be able to assist you in identifying funding streams you could apply for”.
  2. It says the Pathway Plan should outline rights and entitlements and how needs. relating to education, employment and training, health, managing and living independently will be met. It should also include current and future accommodation, support with budgeting, financial entitlements and agreed actions. “Pathway Plans should always have your input. However, if you are not working with us, we will have to complete this on your behalf because it is a legal duty for us to ensure you have a pathway plan”. A manager from the Leaving Care Team will read and agree to the plan every six months once it has been reviewed.
  3. It also says “your PA can help you to access other support services that you might need. This may include mental health support, debt planning and budgeting, housing and accommodation, benefits and education”. Also, “You will need to share information that will help us to help you”.
  4. For care leavers who go into higher education, the Council will pay a £2,000 bursary. It says it will help with costs of vacation accommodation, or will provide it, and will fund transport to and from college.

What happened

  1. Mr X’s life experiences, health conditions and disabilities, cause him difficulty with communication, anxiety, depression and appropriate behaviour. The Council took responsibility for Mr X, under section 20 of the Children Act, in 2010 and agreed an academic pathway. He lived in a homeless shelter while he studied his A levels in 2010-2012. He began a university course but had to drop out early in 2014 due to his health conditions. Two months later, he followed advice and enrolled in a university foundation course which had no basis in his area of interest. He consequently became depressed and could not continue the course. University courses which interested him, required higher A level results than he had achieved so he completed an intensive one year course, studying three relevant A levels. Mr X says this cost him over £18,000 because the Council refused to support him through this and closed his case. It said he was not progressing and would reopen his case if he progressed on to higher education. Mr X challenged the Council’s decision not to fund this study and accommodation; the Council repaid some of his costs but this took a long time. Mr X feels the Council should pay him interest for the time he waited for the repayment. The Council says, as Mr X did not have to pay interest on the money, it has caused him no injustice.
  2. In 2017, Mr X complained to the Council about various issues. This included his concern about PhD study not being included on his pathway plan and funding for various items. He also complained that the Council should pay interest on the significant repayment of costs which he had paid for many months previously.
  3. An independent investigator considered Mr X’s complaint at stage two of the Council’s complaints process. Mr X brought his complaint to the Ombudsman before the Council completed stage three. The independent investigator’s report, accepted by the Council, contains much detail about the issues so I have taken much of the information here from this report.
  4. Mr X was a former relevant child at the time of his complaint to the Council. He was also studying a master’s degree course at university with support from the Council.

Pathway plan and PhD studies

  1. In 2016, Mr X applied to study at university. The Council agreed to support him as a care leaver. It said it would not provide a higher education bursary as this is a one off payment and he had already received this for previous study. The Council said he would be entitled to accommodation during university holidays if he was on the course and below 25 years of age.
  2. Mr X said he wanted to become an engineer or post-doctoral researcher in his chosen field and that he would need to complete a masters degree and PhD. The Council had discussed this with Mr X in April 2015, and later noted it again in a case discussion note dated 1 September 2016.
  3. On 4 December 2018, a senior management decision note states “[Mr X] is now 25 years old and our statutory duty to him has finished, except for our support of his current degree course, to June 2020 as this was agreed prior to his 25th birthday. This has started and we need to maintain this commitment”. It says “The concern is that [Mr X] has not had employment…It would not seem reasonable that [the Council] fund any support towards PhD. There are various funding streams that [Mr X] would need to investigate, as any one else undertaking a PhD would need to do”. It said the Council would write to Mr X to outline the support it was offering and needed to say “we will not support with PhD”.
  4. The most recent pathway plan on file is dated December 2018 and states that Mr X is currently 25 years old. Mr X has not signed the plan as he did not agree with it. The plan says:
    • “[Mr X] has consistently been clear he wishes to complete his education to a PhD level”.
    • “should [Mr X] go on to further studies, he will be offered support to calculate his costs and consider all options for funding, before any future financial support can be considered”.
    • “[Mr X] is a very private individual and he has expressed discomfort in [the Council’s] requests for disclosure of his bank statements”. “[Mr X] has been advised he needs to be open and honest with [the Council], and him not disclosing his bank statements means we can not assess his needs accurately, and what support he may require”. “[Mr X] does not trust [the Council] due to what he views as inaccuracies in its recording”.
    • “We have discussed and explored other funding streams available to [Mr X] to continue towards a doctorate…[Mr X] needs to consider all options for future funding, including whether taking a part time job would help his financial situation and give him valuable experience of the wider working world. [Mr X] can then provide [the Council] with details of the funding he has secured, and his expected costs, so financial support required can be considered”. “[Mr X] disagrees, as he feels [his health condition] prevents him.
    • “[Mr X] can be frustrated by uncertainty and lack of structure”. “Services to ensure they have clear boundaries and plans of support in place, so [Mr X] is aware of expectations both ways, and responses to expect when in conflict”.
  5. When Mr X turned 25, the Council confirmed it would continue to contribute £600 per month to his accommodation costs until his course finishes in mid 2020. It said his PA would continue to meet with him six monthly to review his pathway plan, and make contact every two months. The PA would give advice on identifying funding streams for completing a PhD and covering his living costs.
  6. The Council says it is prepared to support students through to PhD study where appropriate to do so. It said it would assess the ability of the person, whether it was likely to lead to employment, and the contribution of the person to identifying funding.
  7. The university advised the independent investigator that Mr X would not be in a position to understand his options before November 2019.

Expenditure

  1. In 2015, Mr X funded himself to complete an intensive one year A level course, completing three A levels. Following this he successfully applied to study his chosen subject in a four year masters degree course at university and the Council supported him with this. Mr X asked the Council to reimburse him for the cost of his A level course. Rightly, the Council agreed to do this but took over one year to reimburse him over £12,000 and another payment of over £5,000. Mr X says the Council should pay interest on the period over which he was without these funds but it refused. Mr X mentions purchases he might have made had he not had to pay out for these costs. The Council said Mr X had not paid interest on a debt as a result of the delay so it would not pay interest.
  2. Mr X says the Council has not paid the full amount for accommodation during holidays and this has left him short of one month’s rent. Although this is mentioned in Mr X’s complaints to the Council, I have seen no evidence that it has been addressed.
  3. Mr X also asked the Council to pay for his transport from his apartment to the university. Mr X did not retain his tickets which he purchased daily and the Council refused to reimburse him.
  4. Mr X asked the Council to pay for various items including a printer and insurance for his laptop. Also, damage caused by a removal contractor, and an Irish passport in case of problems following the UK’s exit from the EU. I have not detailed these further because the Council’s response to these was adequate and there is nothing I can add to this.
  5. The independent investigator’s report says that Mr X reported to Council staff that he had around £25,000 in savings. “This immediately prompts the thought that the local authority has been giving him too much money”. Also “given the size of his income, the demand for payments he seeks from this investigation cannot be considered sympathetically”.

Complaint handling

  1. For a long time Mr X was unhappy with the Council’s approach to his pathway plan. He had clear ideas about what he wanted included and this differed to his social worker’s view. Mr X complained about this and the other issues as they arose. Mr X has difficulty in communicating and dealing with conflict; the volume of his communication became excessive and at times unpleasant. The Council says it got to the point where it was impacting its support of other young people and the wellbeing of staff; the evidence I have seen supports this view.
  2. The Council decided to deal with Mr X under its “vexatious complainant” policy. It restricted his communication with the Council to one email per week, to the social worker, for an initial period of three months. Mr X feels strongly that he was not vexatious but that the Council was not dealing with the issues he raised adequately; his approach was intended to ensure it did.
  3. The Council says it made several adjustments to its usual approach to support Mr X. This included:
    • Providing Mr X with a designated time to discuss issues with the service leader to prevent his anxiety escalating.
    • Set up a dedicated inbox to ensure clarity of communication and ensure timely responses.
    • Enabling Mr X to move closer to the university as he struggled with public transport.

Was there fault which caused injustice?

Pathway plan and PhD studies

  1. The Council was at fault when it stated it could not support Mr X with a PhD, but it has since confirmed that it is prepared to support students through to PhD study where appropriate.
  2. The Council was not at fault for not including the PhD on Mr X’s pathway plan. Its only obligation regarding his education, is to continue to support him with his current masters’ degree which is included in the plan. It is also right to consider Mr X’s need to support himself independently as an adult. The Council has no duty to support Mr X with further study.
  3. However, the Council should help Mr X prepare for his PhD or other educational plans. Mr X should now be clear about his intentions, so it should give him clear information in good time for him to take any necessary action. The Council should also now decide whether it would be appropriate to provide further support beyond the completion of his current masters’ degree. It will need to consider both the risks and benefits to Mr X as well as what support he might need. If a PhD is a realistic ambition, it should consider whether he is able to access the usual forms of funding. This should not be based on what others can do but on what Mr X can do. It should also keep in mind the corporate parenting principles of promoting high aspirations and seeking to secure the best outcomes.
  4. The pathway plan I saw was adequate. Mr X had not agreed the content but it contained sufficient information for its purpose. Mr X’s expectations around the level of detail needed in the plan were high and this created a significant difficulty.

Expenses

  1. The Council did not adequately consider Mr X’s claim for interest having taken well over one year to repay him around £18,000 in total; this was fault. It assumed Mr X was not caused injustice purely because he was not charged interest on a debt caused by the delay. In fact, not having the money took away Mr X’s options to invest or spend the money and this was injustice. We do not normally consider including interest in a remedy unless the delay was more than six months and the payment more than £1,000. In this case, the delay and sum involved significantly exceeded this. We usually base the calculation of interest on the average retail price index (RPI) for the period. The Council should pay Mr X interest (compound) calculated using the RPI from the date Mr X paid the funds out to the date the Council repaid him, less the first two months. The two months is to allow for the time normally taken to issue a repayment. Whether the Council has been helpful to Mr X or more generous than it might have been, this does not mitigate the delay repaying such a significant amount.
  2. The Council must cover the cost of Mr X’s accommodation during the holidays and so it should revisit what it has paid for this and pay Mr X any shortfall. If there is a sum greater than £1,000 owed to Mr X and it has been outstanding for more than six months, it should add interest to this as described above.
  3. I found no fault in the Council’s approach to the remaining claims. Where the Council had agreed to fund travel, I would expect it to require Mr X to provide evidence of the expenses. The Council does not have to fund the other costs so is making a discretionary decision. It may ask for information about Mr X’s financial status, to inform its decision and be clear about how the funding would support him.
  4. However, I did not see any information about how the Council will treat young people’s own funds; this is fault. It should be clear about how it will consider their finances when deciding about funding. If Mr X has managed to save a significant sum, this ought to be a positive achievement. Although it may mean the Council’s contribution can reduce, it should not lead to thoughts such as “the local authority has been giving him too much money”. The Council implies it has no understanding of how Mr X has accumulated the money, so this approach is unhelpful. I have already considered the £18,000 the Council paid Mr X over one year after the costs he covered. Mr X advises me this sum forms the basis of his savings and the Council should not be surprised that he has such a large sum available to him.
  5. Mr X’s failure to disclose his financial information cannot retrospectively affect decisions the Council made to fund. However, it may inform future decisions for discretionary support. The Council should provide Mr X with written information about the Council’s rights to information about his finances, what it can use this for and how it might affect its decisions. With this, he can make an informed decision about his responsibilities around engaging with the Council.

Complaint handling

  1. Although the concerns Mr X raised were not all upheld, they were issues he believed the Council should address. The volume and nature of his contact also created difficulties and the Council found it impossible to respond to his concerns in the way he expected. This caused further escalating tension. I cannot say the Council was entirely at fault in dealing with Mr X under its vexatious complainant policy because, to some degree, the circumstances fitted the criteria. However, I found some fault because the term vexatious is not helpful and this created further tension. In dealing with Mr X’s concerns, the Council was not dealing with any complainant but with a young person to whom it was parent. The Council acknowledges this and has already implemented a new complaints policy which does not use the term “vexatious complainant”.
  2. Additionally, while the Council made adjustments on occasions to account for Mr X’s disabilities, it did not have in place a protocol for dealing with his difficult behaviours. If it had, it might have found it easier to deal with the escalating behaviour. I saw no consideration of advocacy which may have been helpful, both in dealing with his pathway plan, and with his complaints. The Council was at fault in the way it handled Mr X’s complaints although, at times, this was extremely challenging.

Agreed action

  1. To remedy the injustice identified above, I recommended the Council:
    • Consider what support it can offer Mr X to achieve his PhD, or alternative, and overall career ambition and communicate this to Mr X clearly and in writing.
    • Calculate compound interest on the repaid amount using the Retail Price Index from the date Mr X paid the funds out, to the date the Council repaid him, less the first two months.
    • Revisit the cost of holiday accommodation and pay Mr X any shortfall with interest where appropriate. Mr X will need to provide the Council with information so it can do this.
    • Provide written information to Mr X about the Council’s rights to information about his finances, what it can use this for and how it might affect its decisions. Also ensure this information is available to other care leavers.
    • Discuss with Mr X and develop a protocol to use in the case of Mr X being unable to continue communication in a respectful and manageable way. This should include consideration of adjustments which may be helpful in light of his disabilities.
    • Complete these actions within two months of the final decision and submit evidence to the Ombudsman. Suitable evidence might include:
      1. records of ongoing discussions about the PhD or alternative.
      2. details of the interest calculation and confirmation of payment.
      3. copies of the information provided to Mr X about how the Council considers care leavers’ finances.
      4. copy of the protocol.

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Final decision

  1. I have completed my investigation and uphold Mr X’s complaint that the Council:
    • delayed repaying him for some expenses and refused to repay, or pay for, other expenses.
    • did not deal adequately with his complaint
    • inappropriately used the vexatious complainants’ policy.
  2. I do not uphold Mr X’s complaints that the Council:
    • failed to agree an adequate pathway plan including his PhD study plans.
  3. The Council has agreed to complete the recommended action, and, once completed, this will put right the injustice it caused.

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Investigator's decision on behalf of the Ombudsman

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