Decision : Upheld
Decision date : 25 Apr 2017
The Ombudsman's final decision:
Summary: The Council delayed carrying out transition assessments when Y neared 18 and then withdrew weekly overnight respite sessions for almost three months. The Council should apologise, review its procedures and pay Mrs X £1000 for the lost respite and her time and trouble in having to chase the matter.
- The complainant, whom I shall call Mrs X, complains the Council delayed making arrangements for her son, Y’s transition to adults’ services involving outreach services and respite care.
- She also says the Council has stopped Y’s outreach and respite care since he turned 18 and that she has only been able to re-establish outreach services on her own initiative by agreement with the provider.
The Ombudsman’s role and powers
- 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)
- 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)
- Under the information sharing agreement between the Local Government Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
- I read Mrs X’s complaint and spoke to her on the telephone. I made written enquiries of the Council and considered its response to those enquiries. I considered Mrs X’s email correspondence with the Council, which she sent me. I took account of the government’s statutory guidance for carrying out transition assessments under Sections 58 to 66 of the Care Act 2014 and for children’s social care complaints.
What I found
- Y has social care needs by virtue of a disability. His assessed need is for outreach sessions totalling 10 hours per week in college term times and 12 hours per week during college holidays. He also needs 56 overnight respite sessions per year with the basic average being one overnight per week. Mrs X says the weekly overnight gives her an opportunity to recover as Y often gets up in the early hours of the morning. He finds changes hard to cope with and needs time to adjust.
What should have happened?
- Where a young person will have continuing needs after age 18, statutory guidance says councils must carry out a transition assessment “when there is significant benefit to the young person or carer in doing so”. If it refuses, it must provide written reasons. It should also consider whether to say at what point there will be significant benefit in assessing.
- Where a council is unable to put provision in place by the time a young person reaches 18, it should maintain the provision until its replacement is ready.
- Councils must deal with complaints made by or on behalf of a child or young person under the statutory three-stage procedure laid out in Getting the Best from Complaints 2006. After an initial response, there is an independent investigation at the second stage and a third, panel stage.
- Mrs X said she had been asking the Council to carry out transition assessments for Y and for her as a carer since Y turned 17 in late November 2015. The Council said it had no correspondence that showed this. It said that an email from Mrs X on 4 January 2016, referring back to an earlier request, related to special educational needs, not a transition assessment. It also said she had not asked in meetings for an assessment.
- I checked the email, which Mrs X sent to a social worker. It stated “Did we confirm when you were coming to do [X’s] review? Also, the school has sent an invitation to his EHC review, have you been notified and I wondered if you have been invited. I will be asking for this to be rescheduled as I am away on holiday for it.”
- This email appears to refer to two separate reviews. The second is a review concerning Y’s special educational needs, whose date is already set and which Mrs X is unable to attend. The first is a review to be carried out at an unspecified date by the social worker. The social worker would have no responsibility for the EHC review. In the absence of corroborating evidence from the Council, I do not accept Mrs X was referring to the EHC review only.
- Morever, from February 2016, the correspondence is clear. It shows Mrs X chased the Council regularly. An email from March 2017 she supplied shows she was still doing so at that date.
- The correspondence the Council supplied did not show it told Mrs X it would not assess, or that it told her when it might do so.
- The Council began the assessments in April 2016. It said it had “officially” started the transition process earlier on Y’s 16th birthday by making a referral to adults’ services. It said it also allocated Y an adult social worker before he turned 17. The Council told me it usually starts assessments when a young person is 17 years and six months old. It also said Mrs X had not wanted an adults’ assessment and that it had been working at cross purposes with Mrs X.
- Mrs X complained in August 2016 that the Council had still not sorted out Y’s outreach and respite care. At her request, the Council arranged a meeting. After that, on 28 September 2016, it wrote to Mrs X, offering five possible overnight respite placement locations. It confirmed to me that three of these placements had vacancies for November 2016.
- In her response to the draft decision, Mrs X said she had never been formally offered any of the placements and had only been invited to see one of them.
- Mrs X did not want any of the three respite placement locations with vacancies. She said none of them was suitable for Y as other adults placed there were older than Y, particularly in one location, and the regimes would not suit him. There was no time to find an alternative before Y turned 18. The Council does not accept the placements were unsuitable.
- She complained to the Council in early October 2016. This was six weeks before Y turned 18. The Council did not use the statutory children’s complaints procedure, but instead gave her a single response and referred her to the Ombudsman. It said Mrs X complained to adults’ services. It also says it would have used the statutory children’s complaints process had the Ombudsman asked it to.
- Mrs X says the Council withdrew the respite placement after 28 December 2016. She says a new respite placement is not due to start until 21 March 2017. The Council’s correspondence with Mrs X shows it told her Y could not attend his previous overnight respite placement as it was not able to cater for over 18s. This placement is the Council’s own unit. Emails Mrs X has provided support her claim that she has continued to chase the Council to restore the respite. She also says the outreach sessions stopped between 21 December 2016 and mid-January 2017. The Council says there has been no loss of outreach sessions. It has not provided any evidence to support this. The only evidence I have seen is the emails from Mrs X. They support her claim that the Council withdrew the respite placements.
- The Council takes the view it did not withdraw services, but that Mrs X turned them down.
Was there fault?
- Making a referral to adults’ services on a child’s 16th birthday an allocating an adult social worker before his 17th birthday is not the same thing as assessing and providing for post-18 needs. According to the Council, Mrs X was anxious about Y’s transition on 5 February 2016. Yet it waited until April 2016 to start the assessments. This was fault. Starting them only six months before Y turned 18 when it knew he found change difficult and his placement could not take over 18s ran a significant risk there would be too little time. Given the disagreement that arose about possible placements, this meant Mrs X had to accept one of the respite placements in the Council’s single offer on 28 September 2016 or lose service. Had it started earlier, it might have been possible to set up the placement Mrs X found for 21 March 2017 in time to avoid loss of service.
- The Council did not say it always starts assessments at the same time, but that it usually does this. So I do not find it fettered its discretion. To have a usual practice is not fault, provided the Council considers each case on its own merits and otherwise complies with statutory guidance. The Council confirmed it dealt with Y on an individual basis. I have no reason to doubt this, but the fault identified in the previous paragraph remains.
- The Council withdrew services it had assessed Y needed. This was when the Council’s initial offer on 28 September 2016 had been for respite placements intended for an older age group and there had been too little time to seek an alternative. This was fault, caused in part by the delay in starting the assessments. Mrs X’s one refusal of placements does not mean she was responsible for the ending of service.
- The Council’s failure to use the statutory complaints procedure for children and young people when Y was under 18 at the point of complaint was fault.
Was there injustice caused by fault?
- In the absence of any evidence to the contrary, I find that Y has missed overnight respite placements since 28 December 2016. I find that this will continue until 21 March 2017. I also find there was a gap of two weeks in the outreach placements. I consider Mrs X’s refusal of the placements offered was reasonable, given they were intended for persons aged over 25 and Y was 18. Given Y’s inability to cope with change, her decision not to accept one of them as a temporary measure was also reasonable. Moreover, it is reasonable for any person made an offer to make one refusal.
- The principal injustice comes from the loss of respite Mrs X has had from her caring duties. She describes the night a week when Y is away from home that she lost as an opportunity to get some sleep and recharge her batteries. She says losing this has led to exhaustion and she has had to use up annual leave from her work to sleep.
- The Council takes the view that Mrs X still has some respite because he also spends one night a week with his father. It also says the one teatime a week he spends with his father and his time in education constitutes respite. But my view is not that Mrs X gets no respite, but that she has lost respite she previously had.
- Mrs X has also had to chase the Council for more than a year since at least 5 February 2016 and her email of 13 March 2017 shows this is ongoing. This email shows there is still no certainty that regular overnight respite will continue once it begins on 21 March 2017. This is injustice in the form of unnecessary time and trouble.
- The Council’s failure to use the correct complaints procedure did not cause Mrs X an injustice as she was able to come to the Ombudsman without delay.
- To remedy the injustice caused by fault the Council will:
- apologise to Mrs X for the fault found;
- review its policies and procedures for responding to requests for transition assessments to ensure they comply fully with statutory guidance;
- ensure it uses the correct complaints procedure for complaints made by or on behalf of those aged under 18; and
- pay Mrs X £1000, made up of £750 for the lost respite care and £250 for her unnecessary time and trouble.
- I have upheld the complaint and closed the case as the Council has agreed to provide a suitable remedy for the injustice caused by fault.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman