Decision : Upheld
Decision date : 24 Sep 2019
The Ombudsman's final decision:
Summary: The Council is at fault as it failed to carry out a transition assessment for Miss Y before she was 18, delayed in producing a support plan and adequate care package, delayed in carrying out carers assessments for Mr and Mrs X, failed to issue a final EHC plan, delayed in resolving an issue with Mr and Mrs X’s liability insurance, wrongly stopped Mr and Mrs X’s direct payments and failed deal properly with their complaint. As a result the Council did not provide an adequate care package for Miss Y which caused significant distress to Mr and Mrs X and Miss Y. The failure to provide a final EHC plan has caused uncertainty to Mr and Mrs X and Miss Y. Mr and Mrs X were also caused distress and put to avoidable time and trouble by the other faults. The Council has agreed to remedy the injustice to Mr and Mrs X and Miss Y.
- Mr and Mrs X complain that the Council:
- Failed to carry out a transition assessment for Miss Y before she reached 18 years old;
- Wrongly carried out a transition assessment for Miss Y as a child, not an adult despite the fact she had turned 18;
- Produced a draft care and support plan based on the Council’s Resource Allocation System not on Miss Y’s needs;
- Failed to refer Miss Y for an assessment for continuing health care funding when carrying out the assessment. As a result of a) to d) the Council failed to provide a care and support plan which could meet Miss Y’s needs as an adult and failed to provide respite care for over a year.
- Wrongly stopped direct payments for Miss Y’s care on three occasions in 2018. This meant that on two occasions they could not pay Miss Y’s carers;
- Did not provide training for Miss Y’s carers in providing medical care. As a result the carers were not insured and Mr and Mrs X had to accompany the carers when providing care to Miss Y
- Failed to provide carers assessments for Mr and Mrs X;
- Wrongly directed their complaints to the Children's social care complaints procedure.
- Failed to carry out a transition assessment as part of the annual review of Miss Y’s Education and Health Care plan and, following the annual review, has failed to issue a final Education, Health and Care plan naming Y’s educational provision from September 2019. As a result there is uncertainty as to what educational provision will be made for Miss Y from September 2019.
What I have investigated
- I have investigated how the Council dealt with transition planning for Miss Y from 2017.
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)
How I considered this complaint
- I have:
- Considered the complaint and the information provided by Mr and Mrs X;
- Discussed the issues with Mrs X;
- Made enquiries of the Council and considered the information provided;
- Invited Mr and Mrs X and the Council to comment on the draft decision.
- 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.
What I found
- The Care and Support Statutory Guidance (the guidance), provides that transition assessments should take place at the right time for the young person or carer and at a point when the local authority can be reasonably confident about what the young person’s needs for care and support will look like after the young person turns 18. There is no set age when young people reach that point so transition assessments should take place when most appropriate for the young person.
- Assessments for adult care and support must consider:
- Current needs for care and support;
- Whether the young person is likely to have needs for care and support after they turn 18, and
- If so, what those needs are likely to be and which are likely to be eligible needs.
- Miss Y lives at home with Mr and Mrs X who are her main carers. Miss Y has significant care needs as she suffers from a life limiting condition and a number of other health conditions including severe epilepsy. She also has learning difficulties. Miss Y had a care package of 13 hours per week provided by direct payments. She also has a draft Education, Health and Care (EHC) plan.
- In June 2017 the Council carried out an annual review of Miss Y’s draft EHC plan. The notes of the review record Mr and Mrs X stated they did not know who Miss Y’s transition social worker was. The notes also record an officer undertaking to find out the transition social worker to contact them. The record of the review show the Council did not review Miss Y’s care needs at this time.
- In late October 2017 the Council allocated Miss Y to a social worker, officer A, to carry out a child needs assessment. The Council has said this was because it had not reviewed Miss Y’s care needs since 2014. Miss Y had turned 18 at this time. The assessment identified Miss Y would need appropriate care and support beyond 18.
- Mr and Mrs X consider the Council should have carried out an adult care needs assessment as Miss Y had turned 18. The Council has said Mr and Mrs X could have requested an adult care needs assessment and this was explained to them at the time. It has also said it carried out a child needs assessment as it had identified Mr and Mrs X have provided a copy of an email which they sent to officer A raising that the assessment was for a child not an adult.
- Officer A referred Miss Y to the clinical commissioning group (CCG) for an assessment as to whether Miss Y would be eligible for continuing healthcare (CHC). CHC is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. The CCG did not progress Miss Y’s referral at this time.
- The Council’s records show Miss Y’s case was allocated to officer B, for her support planning. As I understand it the Council also advised Mr and Mrs X of the indicative personal budget for Miss Y’s support plan. This was generated by the Council’s resource allocation system (RAS) but it is indicative and the final personal budget is based on the completed support plan. Mr and Mrs X considered the indicative budget to be inadequate to meet Miss Y’s needs. There is no evidence to show the Council produced a support plan or further considered an appropriate care package for Miss Y for her ongoing care needs. An email from officer B to officer C, social worker, in December 2018 states she was told to put the support plan on hold.
- The Council’s records show, in July 2018, it produced a support plan for Miss Y for the summer holidays. Mrs X has said the Council produced at the end of term which was too late and it included activities which were not appropriate for Miss Y. So the Council failed to provide adequate support for Miss Y over the summer holidays.
- The Council allocated Miss Y’s case to officer C, social worker, in November 2018. Officer B carried out an adult care needs assessment for Miss Y. She also referred Miss Y again to the CCG for an assessment for CHC funding.
- The Council’s records show officer C recommended a personal budget of 85 hours per week for Miss Y plus 15 hours commissioned nurse service and 36 nights of respite a year. The CCG decided Miss Y was eligible for CHC funding in December 2018.
- The increased care package commenced in January 2019.
Stopped direct payments
- The Council’s records show Mrs X contacted it in early May 2018 to report it had not paid Miss Y’s direct payments since March 2018 so she could not pay Miss Y’s carers. I understand the stoppage also caused Mrs X to be fined by HMRC. The Council paid the direct payments on 18 May 2018. The Council stopped the direct payments on two further occasions. The Council has said the stoppage was due to its children’s and adult’s direct payments not being aligned.
- In February 2018 Mrs X notified the Council that she could not obtain employers liability insurance as insurance companies required her to show her carers had received appropriate training from a medical professional to carry out special care such as delivering medication and other procedures. The Council recommended an insurer to Mrs X but her carers still needed to be trained to allow them to carry out special care. In November 2018 Mrs X sent an email to officer C advising that the Council had agreed to arrange and fund training for the carers but had not taken any further action. Mrs X highlighted that the lack of support was having a significant impact on her and her family. An internal Council email dated 19 November 2018 shows the Council agreed to pay for the training and that officer A had approached an organisation to carry out the training but they could not assist. The internal email acknowledges the Council failed to progress the training.
- The Council then explored options for delivering the training and the training was completed in April 2019. Mr and Mrs X immediately insured the carers. I understand the Council also notified other direct payment recipients via a newsletter that their carers may need training if they are delivering special care in order to be insured. It is not clear why the Council was not previously aware of the issue.
Carers Assessments for Mr and Mrs X
- Mr and Mrs X requested carers assessments in June 2017 during the annual review of Miss Y’s statement of special educational needs. The Council undertook to carry out carer’s assessments for Mr and Mrs X in June 2018. It did not carry these out until April 2019 and only in response to my enquiries.
- As I understand it the Council issued a final EHC plan in February 2017. It held an annual review in June 2017 as Mr and Mrs X contested the EHC plan issued in February 2017. The record of the annual review carried out in June 2017 records that Mr and Mrs X contested the plan issued in February 2017 as it was no longer current and based on old information. The annual review in June 2017 agreed to amend the EHC plan. The Council accepts it did not issue an amended plan within the required timescale.
- The Council has said it issued an amended EHC plan in March 2018.
- The Council’s records show it carried out an Annual Review of Miss Y’s EHC plan in July 2018. The Council’s records show officer C attended a further review meeting for Miss Y’s EHC plan in December 2018. She sent an email to the special education needs co-ordinator as no representative attended and identified that Miss Y required an appropriate placement for her post 19 education.
- The Council sent a draft EHC plan to Mrs X in April 2019. Mr and Mrs X provided their comments by end of April 2019. The Council has not issued a final EHC plan.
- In April 2018 Mrs X made a complaint to the Council about the transition and support planning for Miss Y, that the Council had not carried out a carer’s assessment for her and Mr X and that it had not resolved the liability insurance issue. The Council responded in May 2018 and did not uphold her complaint but it did not address the lack of carers assessment or seek a resolution for the liability insurance issue.
- Mrs X made a further complaint in May 2018 about the Council stopping the direct payments. The Council did not respond.
- Mrs X made a further complaint. The Council responded to Mrs X in June 2018. It said it was awaiting Mrs X approval of Miss Y’s care package and that the insurance issue had been resolved. It also said it would arrange carers assessments. Mrs X made a further complaint. The Council’s records show it initially did not deal with this as it considered the matter had been resolved at a meeting with Mrs X in August 2018. Mrs X has provided evidence to show an officer advised she would be liaising with the complaints department as the complaint needed a senior response.
- Mrs X complained the Council had not responded to her complaint. The Council responded in November 2018 and wrongly advised her that she had completed stage one of the children’s services complaints procedure. Mrs X’s complaint is an adult social care services complaint.
- The Council did not actively consider when would be the right time for Miss Y to start transition planning before she reached 18 in accordance with the guidance. It failed to carry out a transition assessment when Mr and Mrs X raised the issue in June 2017. The Council’s decision to carry out the child needs assessment appears to have been driven by its failure to review Miss Y’s care needs since 2014 rather than proper consideration of the appropriate time for Miss Y to have a transition assessment. This is fault.
- The Council’s carried out a child needs assessment for Miss Y. On balance, this is fault. Miss Y turned 18 before the completion of the assessment so the Council should have carried out an adult care needs assessment. However, that assessment identified Miss Y had eligible needs as an adult so this fault is of little consequence. A more significant issue is the Council failed to complete the support planning for Miss Y and provide a care package to meet her needs following officer A’s assessment. The Council also failed to provide an adequate support plan for Miss Y for the summer holidays in 2018. This is fault.
- Following her assessment of Miss Y, officer C recommended a care package of 85 hours per week plus 15 hours of commissioned care and 36 nights of respite per year. On balance, I consider the Council would have provided this care package when Miss Y turned 18 had it carried out the transition assessment prior to Miss Y turning 18 and if it had carried out the support planning after officer A’s assessment in January 2018.
- Miss Y became eligible for CHC funding in December 2018. I am mindful that the Council was not at fault for the failure of the initial referral and CHC assessment. But the Council still had a duty to provide adequate support to Miss Y while she was waiting for the CHC assessment. It failed to do so.
- The Council should have offered a carers assessment to Mr and Mrs X following officer A’s assessment in early 2018. It then failed to carry out the assessments despite Mr and Mrs X’s complaints and its undertaking of June 2018 to carry them out. The Council only carried out the assessments following my enquiries. This is fault.
- The guidance provides that the transition assessment should be undertaken as part of the annual review of the EHC plan and should inform the plan for the transition from children to adult services. As part of this assessment Miss Y’s care needs should have been considered. So, the Council should have considered Miss Y’s transition before she turned 18, amended and issued an EHC plan. It failed to do so. The Council failed to issue a draft EHC plan after the annual review in July 2018. It did not do so until April 2019 which is approximately 18 months after Miss Y turned 18 and has still not issued a final EHC plan. This is fault.
- The Council has not provided any explanation for the lack of transition planning and the significant delays in issuing a final EHC plan. I also note a lack of involvement from the Council’s SEN service in Miss Y’s annual reviews despite officer C’s best endeavours to engage that service.
- The Council is at fault for stopping Miss Y’s direct payments on two occasions. The Council has said it reinstated the payments within a few days. However, it did not pay the direct payments between 29 March and 18 May 2018 which meant Mrs X could not pay her carers. This is a significant delay and is fault.
- The Council has not provided any explanation of why it was not aware that carers providing medical and other special care must be trained to allow the direct payment recipient to obtain liability insurance. This is an issue which could affect a large number of direct payment recipients. The Council is required to provide timely and relevant information about direct payments. So, on balance, the Council should have been aware of the issue before Mrs X raised it.
- The Council agreed to provide training for Mrs X’s carers to ensure she could obtain employers liability insurance. It is not clear why the Council did not undertake to do this in February 2018 when Mrs X first raised the issue. The evidence shows it was difficult for the Council to find a provider. But the Council’s internal email of November 2018 shows it did not actively pursue the matter for some months which added to the delay in finding a provider. This is fault.
- The Council was correct in dealing with Mrs X’s complaint as an adult social care complaint. But its response of May 2018 was inadequate as it did not properly address the issue of liability insurance or deal with Mrs X’s complaint about the lack of carers assessments. It did not deal with Mrs X’s complaint about the transition planning for Miss Y. The Council also should have written to Mrs X after its meeting of August 2018 so she could be clear it considered her complaint was resolved. It then undertook to issue a response in October 2018 but failed to so Mrs X had to make a further complaint. The Council also wrongly told Mrs X it had considered the complaint under the children’s services complaints procedure in November 2018.
Injustice to Mr and Mrs X and Miss Y
- The Council’s delay in carrying out transition planning for Miss Y and the delay in providing a support plan and care package for Miss Y has caused significant injustice to Mr and Mrs X which the Council should remedy. As I say above, I consider the Council would have provided the significantly increased care package from November 2017 when Miss Y turned 18. The Council continued to provide Miss Y’s care package of 13 hours per week until January 2019. But this care package was wholly inadequate to meet her needs as an adult. So Mr and Mrs X did not have adequate support in caring for Miss Y between November 2017 and January 2019 when the significantly increased care package was put in place. They also did not receive sufficient respite from caring for Miss Y.
- Mr and Mrs X have said this caused significant worry and anxiety to them as they were unable to plan work, annual leave or any time away from looking after Miss Y. Mrs X has said the emotional distress impacted on her ability to work and care for Miss Y. They have also said it put a strain on their relationship whilst they tried to balance caring day and night for Miss Y while working. I have no doubt the faults caused significant distress to Mr and Mrs X in the way they describe.
- Miss Y also missed out on an appropriate level of respite care.
- There is no evidence to show Miss Y missed out on provision as a result of the failure to issue a final EHC plan. But the failure to plan Miss Y’s transition and issue a final EHC plan also caused significant uncertainty to Mr and Mrs X and Miss Y regarding her future education.
- The Council’s failure to be aware of the issue of liability insurance and delay in providing the training to Miss Y’s carers caused significant injustice to Mr and Mrs X. They have said they had to take time off work to cover carers when they were uninsured and were put to avoidable time and trouble in pursing the matter with the Council. The Council’s error in stopping the direct payments also caused further distress and put Mr and Mrs X to avoidable time and trouble in having to contact the Council to resolve the matter. The Council’s failure to property deal with Mr and Mrs X’s complaint also added to their distress and frustration. The Council should remedy this injustice.
- In commenting on my draft decision the Council has acknowledged the faults identified by this investigation. It has provided details of how it intends to improve its service and it has agreed my recommendations for remedying Mr and Mrs X and Miss Y’s injustice.
- That the Council:
- Sends a written apology to Mr and Mrs X and makes a payment of £10,000 to acknowledge the significant distress caused by its failure to properly plan Miss Y’s transition from children’s to adult care services and the 13 month delay in providing an adequate care package and delay in carrying out a carers assessment. The apology and payment should also acknowledge the uncertainty caused by the Council’s failure to issue a final EHC plan for Miss Y following the annual review of July 2018, the distress and avoidable time and trouble caused by its delay in resolving the liability insurance issue, the stopping of the direct payments and failure to properly deal with Mr and Mrs X’s complaint.
- Sends a written apology to Miss Y and makes a payment of £1000 to acknowledge the failure to provide adequate respite care and the uncertainty caused by its failure to issue a final EHC plan following the annual review of July 2018. The Council should take the action at a) and b) within one month of my final decision.
- Issues a final EHC plan for Miss Y within two months of my final decision. This will provide Mr and Mrs X and Miss Y with certainty about its provision and right of appeal to the Tribunal, if needed.
- Carries out a review of its transition assessments to ensure officers actively consider and evidence their decision on when they consider it is of benefit to the young person to start the transition assessment. It should also include clear timelines for the transition assessment and care and support planning to ensure the delays experienced in this case do not recur.
- Reviews its EHC plan procedures to ensure it starts transition planning in year 9 for children with assessed care needs and includes a timescale for issuing final EHC plans to ensure the delays experienced in this case do not recur. The reviews at d) and e) should be a joint review with Social Care and SEN departments. The Council should carry out this review within three months of my final decision and explain to the Ombudsman how it has improved its practice.
- The Council is at fault as it failed to carry out a transition assessment for Miss Y before she was 18, delayed in producing a support plan and adequate care package, delayed in carrying out carers assessments for Mr and Mrs X, failed to issue a final EHC plan, delayed in resolving an issue with Mr and Mrs X’s liability insurance, wrongly stopped Mr and Mrs X’s direct payments and failed deal properly with their complaint. As a result the Council did not provide an adequate care package for Miss Y which caused significant distress to Mr and Mrs X and Miss Y. The failure to provide a final EHC plan has caused uncertainty to Mr and Mrs X and Miss Y. Mr and Mrs X were also caused distress and put to avoidable time and trouble by the other faults. The Council has agreed to remedy the injustice to Mr and Mrs X and Miss Y so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman