Decision : Upheld
Decision date : 05 Feb 2019
The Ombudsman's final decision:
Summary: Ms Z complains on behalf of Mr X the Council failed to transition him from children’s services to adult social care in accordance with the law and guidance published by the government. The Ombudsman finds there was fault in how the Council handled Mr X’s transition. This caused Mr X and those caring for him understandable uncertainty. The Council has accepted our recommendation to apologise, pay a financial remedy to Mr X and take measures to prevent it happening again.
- Ms Z complains on behalf of Mr X the Council failed to transition him from children’s services to adult social care in accordance with the law and guidance published by the government. She says this has caused uncertainty and anxiety as the Council has misrepresented his abilities and those who care for him cannot plan for the future.
- In particular, Ms Z complains the Council:
- adult social care team did not engage in the transition process;
- has failed to explain why it did not alter Mr X’s needs assessment, despite objections from his former foster parents and documented concerns from professionals who worked with him at the time in children’s services;
- has not taken account of an independent capacity assessment, arranged by his former foster parents in 2017, which says Mr X has limited understanding and a low level of functioning;
- imposed a ‘Staying Put’ arrangement shortly before Mr X’s 18th birthday, without proper consultation, and it never put a ‘Staying Put’ agreement in place;
- did not provide Mr X with a care plan explaining the rationale for his current support;
- did not allocate a social worker until eight months after Mr X’s 18th birthday and did not replace his personal advisor, who last saw him in January 2018 and left in March, until a complaint was made in June 2018.
- has failed to explain how it calculated his direct payment and ‘Staying Put’ budget despite requests for this information.
What I have investigated
- I have carefully considered the different aspects of this complaint. I have decided I can investigate all of them except parts (b) and (c).
- This is because the evidence available to me strongly suggests (b) and (c) were part of judicial review proceedings brought to court by Mr X against the Council in 2017. I have seen a copy of legal correspondence between the Council and Mr X’s representatives in that matter and the judge’s order dated January 2018.
- The law is clear that we cannot investigate anything which has been the subject of court action and so I will not consider parts (b) and (c) further.
The Ombudsman’s role and powers
- We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
- their personal representative (if they have one), or
- someone we consider to be suitable.
(Local Government Act 1974, section 26A(2), as amended)
- We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
- 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)
- 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)
- 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)
How I considered this complaint
- I spoke with Ms Z and considered the letter and material she presented on Mr X’s behalf. I wrote to the Council and made enquiries. I reviewed the material it sent in response.
- I have considered the Care Act 2014 and the Care and support statutory guidance which accompanies it. Chapter 16 of the guidance deals specifically with transition of children to adult social care.
- I have also considered the Children Act guidance about transition arrangements published by the government in January 2015 and, ‘Extending Personal Adviser support to all care leavers to age 25’, which is statutory guidance about personal advisers.
- I shared my draft decision with Ms Z and the Council and I invited them to comment on it.
What I found
- Mr X is a young adult who lived with the same foster carers throughout most of his childhood. As a result of his disabilities he has care needs which the Council has a responsibility to meet.
- The Care Act and its statutory guidance explain the responsibilities councils have for transitioning children with care needs to adult social care.
- The aim of this approach is make sure councils continue to follow an existing assessment and to avoid a cliff edge at age 18 when services might end. It also allows greater flexibility in the timing of transition. There must be involvement of the young person throughout the transition period. Councils must work in cooperation with the young person, their family and relevant professionals. It should appoint a named worker to act as a link and to coordinate planning.
- The timing of the transition assessment can be flexible to take account of the young person’s needs and circumstances. The council can combine the transition assessment with other assessments providing all parties agree.
- In Mr X’s case, the Council says it has no standalone transition plan. It says other assessment documents, including his Education, Health and Care Plan (EHCP) and Pathway Plan focused on outcomes preparing him for adult life. The Council says this is something it considered from when Mr X was 14.
- The Council’s policy says, “if the young person is eligible for adult social care support the named adult care manager attends the annual review meeting” when they are aged 16.
- In May 2016, there was a ‘Preparing for Adulthood’ meeting held about Mr X but the adult social care department says colleagues in children’s services did not inform it. An adult social care social worker did not attend a meeting about Mr X until an EHCP review in March 2017.
- The way in which the Council managed Mr X’s transition was fault. The failure of children’s services to tell adult social care about the meeting in May 2016 meant the Council did not meet the requirements of its own policy.
- The Council told the Ombudsman it did not believe this caused any injustice to Mr X. I disagree. Although the Council eventually completed an adult social care needs assessment before Mr X was 18, his foster parents significantly disputed its content. I conclude if there had been involvement from adult social care earlier, providing an opportunity to build up a rapport and better understanding of Mr X’s circumstances and his foster parents, that dispute may well not have happened. However, I accept it avoided the potentially bigger injustice of Mr X ending up in an unsuitable placement after he turned 18.
- A ‘staying put’ arrangement is different from a foster placement. The young person staying put is no longer a looked after child. Instead they are a care leaver entitled to support from an allocated personal adviser. The foster carer becomes their ‘former foster carer’ and the foster placement becomes a staying put arrangement.
- Ms Z says the Council imposed a staying put arrangement for Mr X at short notice, without consultation and without a proper agreement between the parties.
- I do not accept the Council imposed the arrangement. The alternatives for Mr X’s post-18 care would likely have had a more harmful effect on him. Nor was staying put a new idea for Mr X. There were discussions about it in meetings with his foster parents and a letter written by the Council in September 2017, addressed to Mr X, explained the Council’s reasons for moving him to a staying put arrangement.
- However, there should have been a formal agreement. Mr X’s Placement Review Plan said in August 2017, “the [social worker] needs to provide an agreement in writing between the carers and [Mr X] as to our expectations of staying put funding.” The Council knew it needed to do this but did not.
- I considered whether the September 2017 letter met that standard. The statutory guidance says, “local authorities will have their own protocols governing staying put’ arrangements. However, as good practice, the local authority should, prior to the new arrangement commencing draw up a ‘living together agreement’. This should be agreed by the young person, the former foster carer and the social worker/personal adviser. Such agreements should cover the ‘ground rules’ of the household as well as the areas of responsibility that all parties to the arrangement are expected to fulfil.”
- The Council’s own policy on staying put says discussions should ‘ideally’ start before the young person is 16 and their Pathway Plan should ‘set out all the practical arrangements’. It also speaks about how an agreement can lay out support for foster carers, particularly in helping the young person develop independent life skills. There is no evidence that happened in this case and so the Council’s actions were fault. The September 2017 letter does not meet the standard of an agreement.
- Although Mr X’s pathway plan says he was “…not able to understand the Staying Put policy”, the Council could have reached an agreement with the foster carers and by using an advocate for Mr X. This is particularly important as any agreement would serve to protect Mr X’s rights in his new relationship as a young adult living with his former foster carers.
- This fault caused an injustice to Mr X. The law and statutory guidance recognise moving from foster care to a staying put arrangement is a change which should be marked by an agreement between the young adult, the former foster carers and the council in question. Without that agreement, there was a risk Mr X’s wishes were not being fully recognised or met. My initial view was an agreement should be written now. However, I have accepted the Council’s position it is possible as Mr X is no longer receiving staying put funding.
- The Council says it completed Mr X’s assessment “prior to [his] 18th birthday”, but there was then a dispute regarding the outcomes with his foster carers. It says it discussed the plan with Mr X’s former foster mother. However, although I have seen a log of that meeting, I cannot see any mention of the care plan.
- The Council has provided a copy of Mr X’s care and support plan which a social worker completed in October 2017. It says it sent a copy to Mr X’s former foster parents’ daughter and a copy to the organisation managing Mr X’s direct payments that month.
- I do not consider there is enough evidence of fault here to uphold this complaint. The Council sent copies of Mr X’s care and support plan to those responsible for Mr X’s care.
- There are two aspects to this complaint and I will consider them in turn.
- The Council says it did not allocate a social worker after Mr X’s 18th birthday as it only does this for those receiving direct payments at review times. It says this is because its direct payments team oversees those clients. It says it assigned a social worker to Mr X near the end of 2018 when a review was done.
- I cannot see there was fault by the Council here. It has acted in line with its policy.
- The Council has provided details of personal advisers who it allocated to Mr X. It says children’s services was responsible for this when he was aged 16 and 17 and then adult social care after that. Its records show Mr X had different personal advisers from May 2016 to June 2017, September 2017 to March 2018 and March 2018 to June 2018.
- The Council has accepted there was fault on its part because the final personal adviser failed to contact Mr X or his former foster parents during her time in post. However, it did not explain why it did not assign a personal adviser to Mr X between June and September 2017.
- The law says councils must provide a personal adviser to a care leaver until the age of 25 if they want that support. There is no evidence Mr X refused it. There were two gaps during the key time when Mr X was transitioning to adult social care and I consider this to be fault. It caused an injustice to Mr X as he did not receive the benefit of a service the law says he should have received. His vulnerability makes the personal adviser’s role all the more important.
- This complaint centres around an allegation the Council failed to provide to Mr X’s foster carers, despite them asking for it. In looking into this I have to consider the issue from the perspective of Mr X, who is the complainant.
- Mr X received a direct payment of £302. Having reviewed the documents provided to me, including complaint correspondence, I am satisfied the Council clearly explained this in several letters to Mr X’s former foster carers. I appreciate they disagree with the Council’s decision but that alone is not grounds for me to find it is fault.
- There was also a staying put budget put in place. It appears it is normally a fixed amount but minutes of a meeting of the funding panel show the Council used its discretion to agree a higher rate for Mr X. However, without the staying put agreement as detailed above, it is not clear how it communicated this decision to Mr X’s foster parents. This was fault. However, I do not see this caused any direct injustice to Mr X and so I cannot recommend any remedy for the fault identified.
- By 5 March 2019, the Council has agreed to:
- Write to Mr X, via his representative Ms Z, to apologise for the fault identified in how it handled his transition arrangements, not putting in place a formal staying put agreement and in the allocation of personal advisers.
- Pay Mr X £250 in recognition of the uncertainty caused to him and those caring from him by that fault.
- There was fault in how the Council handled Mr X’s transition. This caused Mr X and those caring for him understandable uncertainty which was an injustice that should be remedied.
Investigator's decision on behalf of the Ombudsman