Hertfordshire County Council (16 009 954)

Category : Adult care services > Transition from childrens services

Decision : Upheld

Decision date : 27 Sep 2017

The Ombudsman's final decision:

Summary: There has been confusion about the payments made to the complainant to help her look after her disabled sister. The Council’s Panel decisions are also not properly recorded and the complainant’s wish to return to work has not been fully considered. The Council has accepted the Ombudsman’s recommendations for procedural change and a payment for the avoidable distress.

The complaint

  1. The complainant, who I shall refer to as Ms X, cares for her disabled adult sister, who I shall refer to as Ms Y.
  2. A brief summary of the complaint is that the Council has delayed in reviewing the care plan and support package for Ms Y who has significant needs. Ms X is also concerned that her needs, as a carer, have not been fully recognised by the Council.
  3. Ms X is particularly concerned that Ms Y’s care package was reduced without explanation and the Council’s calculations, care and support plans are confusing.

What I have investigated

  1. I am investigating matters only from January 2015. The matters which I cannot investigate are set out in the last paragraph of this statement.

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The Ombudsman’s role and powers

  1. The law says the Ombudsman cannot normally investigate a complaint when someone can appeal to a tribunal. However, she may decide to investigate if she considers it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a))
  2. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
  3. 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)

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How I considered this complaint

  1. I have obtained the Council’s comments which the complainant has considered. I have spoken to Ms X on the telephone and to the Head of Service.
  2. I issued two draft decision statements to both the Council and to the complainant. I have taken into account their additional comments when issuing this final decision statement.

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What I found

  1. The Care Act 2014 came into effect in April 2015. This has created a new legal framework for councils to assess and provide services for adults.
  2. Section 1 creates a new statutory principle to promote the adult’s well being. Section 13 requires a council to determine whether a person has eligible needs after they have carried out a needs assessment or a carer’s assessment.

Care Act 2014 assessments

  1. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment of any adult who appears to need 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 in the assessment and, where suitable, their carer or any other person they might want involved.
  2. The Care and Support (Eligibility Criteria) Regulations 2014 set out the eligibility threshold for adults with care and support needs. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. To have needs which are eligible for support, the following must apply:
    • the needs must arise from or be related to a physical or mental impairment or illness; and
    • because of these needs, the adult must be unable to achieve two or more of the following outcomes:
  • managing and maintaining nutrition;
  • maintaining personal hygiene;
  • managing toilet needs;
  • being appropriately clothed;
  • being able to make use of the adult’s home safely;
  • maintaining a habitable home environment;
  • developing and maintaining family or other personal relationships;
  • accessing and engaging in work, training, education or volunteering;
  • making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
  • carrying out any caring responsibilities the adult has for a child.
  1. Where local authorities have determined that a person has any eligible needs, they must meet these needs. When a local authority has decided a person is or is not eligible for support it must provide the person to whom the determination relates (the adult or carer) with a copy of its decision
  2. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan where the person has eligible needs. The care and support plan should consider what the person wants to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area.  When it prepares a care and support plan, the local authority must involve any carer the adult has. The support plan may include a personal budget. This is money the council has worked out will cover the cost of arranging the necessary care and support for that person.
  3. A council can provide or arrange care services for a person who has eligible care needs.  Or if the person prefers, they can have a cash payment (called a direct payment) so they can arrange their care independently.
  4. Councils must keep care plans under review to make sure they do not get out of date. Reviews must involve the cared for person and check if their circumstances or needs have changed. Reviews can be planned, unplanned or requested by the person themselves or a family member.
  5. Reviews should cover important issues. Those particularly relevant to this complaint include:
    • If someone’s needs or circumstances have changed.
    • What is working and what might need to change in the person’s care.
  6. Reviews must not be used to arbitrarily reduce someone’s care and support package.
  7. The Mental Capacity Act 2005 explains that mental capacity assessments should always be about someone’s capacity to make a particular decision at a specific time. Councils should assume every adult has capacity to make decisions unless an assessment proves otherwise.

Special Educational Needs (SEN)

  1. Councils must identify and make a statutory assessment of those children for whom they are responsible who have special educational needs and who probably need a Statement or, since September 2014, an Education, Health and Care Plan (EHCP).

The Council’s procedures

  1. The Council has a document: ‘Deciding if the 0-25 Together Service can help you’. It has three levels of need; low, moderate and severe impact. The document explains the services someone can expect to receive depending on their need level.
  2. The Council’s Panel makes decisions about eligibility and funding for each case. The Council does not take minutes of these Panel hearings but it will provide a decision sheet. The Panel meets weekly and is chaired by a Head or Deputy Head of Service, along with a finance officer, a team manager from the relevant team and a member of the commissioning team.

Key facts

  1. Ms X started to care for her sister, Ms Y, after their mother died. Ms X moved into the family home and the tenancy was placed in her name.
  2. Ms Y attended a school for those with moderate learning difficulties. She has an Education, Health and Care Plan (EHCP). Ms Y is diagnosed with autism and has a learning disability. She also suffers from epilepsy. Ms Y is able to manage her personal care needs but she needs support in all other areas. She has sensory processing issues, she can be fearful of crowds and suffers from poor balance and coordination

Events of 2015

  1. In 2013 Ms Y had started a three year College course. In January 2015 there was a meeting at the College where the possibility of Ms Y undertaking a third year was discussed in addition to the support required for Ms Y and Ms X in the event that Ms Y did not do a third year at the College. However it was subsequently agreed that Ms Y would return to College in September 2015.
  2. In May 2015 Ms X appealed against the financial assessment carried out by the Council in relation to Ms Y’s care package. In particular she was concerned that there was no allowance in relation to the disability related expenditure. Ms X explained that she required a car because Ms Y cannot manage public transport due to her anxieties. She also explained that Ms Y required one to one support in all activities.
  3. In June 2015 there was a carer’s assessment. Ms Y’s EHCP was also updated. The financial arrangement then was for Ms Y to receive a social care package for the days when she was not at College. In July 2015 the Council agreed to make an allowance for activities and for transport costs. In August 2015, as a result of additional information provided by Ms X, the allowance for activities was increased.
  4. Ms X was not satisfied because there were other disability costs which the Council had not included. In October and November 2015 additional payments were agreed for community access and college holidays by means of direct payments.
  5. In 2015 there were nine Panel meetings. In 2015 it was agreed that Ms Y could have two respite nights, at home, per month provided by her direct payment. The Council also organised a one off payment of £500 for Ms X and Ms Y to visit family and £25 per week for household chores but only until September 2016 when it was due to be reviewed.
  6. Ms X sent me a schedule of payments for 2015. Payments have varied over the year and it is impossible to establish the exact reason for this except that there were changes in the support plan, all of which had to be considered by the Council’s Panel. There was also a switch to direct payments around November 2015 which would have reduced the payments made.

Events of 2016/2017

  1. In January 2016 Ms X requested direct payments because of difficulties working with agencies. She also asked to have a change of social worker. In addition there was an issue about whether Ms Y would be eligible to remain in further education. Ms X appealed this decision to the SEND Tribunal.
  2. A new social worker was appointed, a Senior Practitioner, in June 2016. This worker arranged additional support for the summer holiday period. Ms X says that in May 2016 the Council had significantly reduced the payment. The Council says that this is likely to have arisen because Ms Y’s care package had been provided by an agency. But it changed to direct payments at Ms X’s request and this therefore reduced the amount.
  3. In December 2016 there was a carer’s review. Ms X explained that she would like to return to work; she also stated that she is not able to access any community or leisure facilities because of her caring responsibilities.
  4. The Head of the Council’s 0-25 Together Team became involved because he was concerned about the confusion about the care package and because of the stress on Ms X in caring for her sister. The Head met Ms X and there have been a series of emails and meetings between them to clarify the care package and payments.
  5. It does appear that the payments in 2016 have been more consistent and of similar amounts.
  6. In January 2017 there was an indication that Ms Y might be able to continue to access her College course and the SEND appeal was postponed.
  7. On 20 March 2017 a care and support plan was completed and sent to Ms X in early April. The Council also sent Ms X a financial assessment and the contribution Ms Y was expected to make per week to the support package. She has concerns about the allowable expenses and the Head of Service has been trying to resolve these.
  8. Ms X says the Head of Service has reverted Ms Y’s support package back to what was agreed in November 2015. But she is anxious that the Council will change Ms Y’s support package again in the future without notice.
  9. Ms X has now approached an advocate because she is finding hard to negotiate with the Council, she does not trust the Council and her own health is deteriorating. The advocate asked for a breakdown of the budget from the income team and for her petrol costs to be taken into account.

The Council’s view

  1. The Council considers that, while there have been some difficulties, it is not possible to explain all the historical discrepancies in the payments which have occurred. It accepts that the arrangements can be confusing for carers and that improvements are required to streamline the service. However overall the Council is satisfied that it has met Ms X and Ms Y’s needs and therefore they have not missed out on a proper support package.
  2. The Council has also told me that it is unaware of Ms X’s wish to return to work. However I note that Ms X has mentioned this in her communication with the Council.

Ms X’s views

  1. Ms X says she has struggled to understand the rationale for the Council’s decisions and she has been very confused by the payment schedule for a prolonged period. Ms X considers that the Council has delayed in answering her queries and this has added to her frustration and distress.
  2. Ms X considers the Council was aware that it reduced Ms Y’s care package but it failed to provide its reasons for doing so. Ms X continues to feel aggrieved by this fact and mistrustful of the Council.

Analysis

  1. Ms X has shown great commitment to her sister and she works tirelessly to ensure that her sister not only receives basic support but that her quality of life is improved by additional activities and a proper education plan. This is entirely in keeping with the spirit of the Care Act 2014.
  2. I accept that the information Ms X has received from the Council about the support package is confusing. I have been unable to clarify the basis of all the past payments and further investigation is unlikely to enable me to do so. On that basis, I agree with Ms X that the Council’s arrangements have caused her avoidable distress and frustration and that the payment schedule should have been clearer. It seems, however, that the Head of Service is aware of this problem and he has been looking at ways to improve practice. He has also become involved in Ms Y’s care package because he has recognised the stress caused to Ms X by her dealings with the Council.
  3. However this has not fully resolved the situation and Ms X has now requested an advocate to support her and Ms Y in the negotiations with the Council.
  4. In addition, 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. I recommended therefore that the Council gives consideration to prompt improvements in this area.
  5. Ms X has stated she would like to return to work. If Ms X remains interested in doing so, the Council will need to have further discussions with her about this. At the present time this does not seem to have been discussed with Ms X. But it may be helpful to Ms X’s well being long term if she has some other focus over and above caring for her sister. So I recommend this is discussed with her directly.

Agreed action

  1. Ms X does not consider the suggested compensation is sufficient. But the Ombudsman normally recommends small payments for distress. So I consider the amount agreed is in keeping with the Ombudsman’s guidance on remedies.
  2. However the crucial matter is to try to ensure proper care planning for now and for the future. With this aim in mind, I recommended the following;
      1. The Council explained the changes it intended to make to the Panel arrangements and how they would be made more transparent and better able to provide the rationale for its decisions. The Council has now revised its procedures so that reasons for decisions are recorded on the case file;
      2. The Council provided a breakdown of the allocated budget as requested by Ms X’s advocate. The Council has now done so. It has confirmed the budget for the year and Ms X has accepted this;
      3. The Council considered Ms X’s petrol costs as a disability related expense. The Council has considered this but it says that Ms Y’s petrol costs can be fully met from her higher rate of mobility allowance. The Council says that this benefit has been disregarded in the financial assessment. Ms X continues to disagree with the Council’s decision not to include petrol costs as a disability related expenditure. This is primarily a decision for the Council to make and there is not sufficient evidence of fault for the Ombudsman to question it;
      4. The Council supported the involvement of an advocate for Ms X and Ms Y to assist with the future care planning. The Council says Ms X has access to the local advocacy service. The Council has agreed a one off payment of £222.00 to Ms X’s accountant who has helped with issues about the budget;
      5. The Council has agreed £200 as compensation for Ms X’s avoidable distress caused by the confusion about payments. Ms X does not consider this is sufficient but I consider it is in line with the Ombudsman’s guidance on remedies;
      6. The Council is willing to carry out a further carer’s assessment if Ms X requests this;
      7. Ms X had also asked for the Council to consider Ms Y’s consumption of coffee as a disability related expense because she suffers from excessive tiredness. The Council has not agreed this and has suggested that Ms X speaks to Ms Y’s doctor to review her medical needs.

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Final decision

  1. There is fault by the Council in the way described. Those faults have added to Ms X’s frustration and to the burden of her caring responsibilities.
  2. The Council has agreed most of the recommendations made. While I cannot identify the exact cause for the previous problems, I am satisfied that there has been avoidable confusion. The Council has taken note of Ms X’s concerns and it has now provided a care and support plan and a budget for the forthcoming year.
  3. The Council has not agreed to all of Ms X’s requests but it has provided its reasons for not doing so. Ms X continues to disagree but that is not evidence of fault by the Council.
  4. I have therefore completed my investigation and I am closing the complaint.

Parts of the complaint that I did not investigate

  1. I have not considered any complaint about the EHCP because Ms X has a right of appeal to the SEND Tribunal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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