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Walsall Metropolitan Borough Council (19 006 572)

Category : Adult care services > Transition from childrens services

Decision : Upheld

Decision date : 26 May 2020

The Ombudsman's final decision:

Summary: The late Mr F complained the Council had reduced his grandchildren’s care package without considering the impact on their mother, who was their main carer, and without undertaking a carer’s assessment. There was no fault in the Council’s decision to reduce the care package. It failed to carry out a parent carer assessment in 2015 or produce a plan to transition to adult social care, but this did not cause significant injustice. There was delay in the complaint handling which caused time and trouble. The Council has agreed to apologise and make a payment to acknowledge that injustice.

The complaint

  1. The late Mr F complained on behalf of his daughter, Mrs J, and grandchildren (Mr K and Miss L) that the Council failed to:
      1. Take a 'whole family approach', properly apply the Care Act 2014, or consider the facts, when reviewing his grandchildren's care package and direct payments in 2015.
      2. Undertake a carer's assessment of his daughter to ensure that she could effectively meet the needs of the children, and failed to put in place a contingency plan in the event of her being unable to care for the children.
      3. Ensure there was an effective transition process for both children from Children to Adult Services.
      4. Effectively communicate with the family
  2. Mr F said this had caused significant distress to the family.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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)
  4. 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 the information Mr F sent, the Council’s response to my enquiries, and:
    • The Children Act 1989
    • The Children & Families Act 2014
    • Statutory Guidance Working together to safeguard children
    • Statutory Guidance Getting the best from complaints
    • The Care Act 2014
    • The Care and Support Statutory Guidance
  2. Mrs J and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Children in need

  1. Section 17 of the Children Act 1989 imposes a duty on councils to provide services for children in need within their area, for the purposes of safeguarding and promoting their welfare, and promoting their upbringing by their families. Children in need may be assessed under section 17 of the Act by a social worker. The assessments should determine whether the child is in need and the nature of any services required. The Council has a complex care and short breaks panel, which approves the services to be provided.

Adult care and support

  1. The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.

Transition to adult care services

  1. The Care and Support Guidance says councils must carry out a transition assessment of a young person when there is significant benefit to the young person or carer in doing so, and if they are likely to have needs for care or support after turning 18. Councils must not leave a gap in support when young people move from children’s to adult services.
  2. When cases are moving from children’s to adult services, the Council aims to allocate an adult social care social worker up to six months before the child turns 18. The cases are considered at multi-disciplinary transition meetings every six weeks. The Council’s transition protocol for disabled children says a transition plan should be completed three months before the young person’s 18th birthday.

Carers’ assessments

  1. The Children and Families Act 2014 introduced a requirement from April 2015 that, if a local authority considers that a parent carer of a disabled child may have support needs, it must assess whether it is appropriate for the parent carer to provide, or continue to provide, care for the disabled child, in light of the parent carer’s needs and wishes.
  2. The Care Act 2014 says councils must assess the needs of an adult carer of a child with care and support needs, if the child is likely to require care and support after they turn 18 and it is of significant benefit to the carer to carry out the assessment.
  3. The Care Act also says where an individual provides or intends to provide care for another adult, and it appears the carer may have any needs for support, councils must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself.
  4. The Care and Support Guidance says councils may combine different types of assessment, e.g. a parent carer assessment under the Children and Families Act with a child’s carer’s assessment of the adult carer under the Care Act.

Children’s statutory complaints procedure

  1. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services provided under the Children Act 1989. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review.
  2. The role of the stage 3 review panel is to consider the adequacy of the stage 2 investigation and to focus on achieving resolution for the complainant. The review panel should not reinvestigate the complaints, nor consider any substantively new complaints that have not been first considered at stage 2.
  3. Getting the best from complaints sets out the timescales for the complaints process. The stage 1 response should be sent within twenty working days. Stage 2 starts when the complaint summary is agreed and the investigation should be completed within 65 working days of the investigating officer being appointed. The stage 3 panel should be held within 30 working days of the complainant’s request for a review.
  4. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

  1. The late Mr F’s grandchildren, Mr K and Miss L, are now adults. They both have a diagnosis of autistic spectrum disorder, learning difficulties and other complex needs. They live with their parents, Mr and Mrs J, and attend an independent special school. Mrs J is their main carer. She has physical and mental health needs.
  2. Mr K and Miss L were children in need and in 2006 the Council agreed to provide each with direct payments for support from two personal assistants of:
    • one waking night (12 hours from 7pm to 7am) per week
    • eight hours per week during term time
    • an extra eight hours per week during school holidays
  3. In 2015, when they were 16, the Council assessed Mr K and Miss L’s needs. The assessment concluded that their needs remained the same and the care package set out above should continue. It was noted that an assessment would be carried out by adult social care to enable their transition to adult services. Mrs J told the social worker she was on medication for depression.
  4. The Council’s complex care panel reviewed the care package in July 2015. It asked for more information about the frequency Mr K and Miss L woke up, what support the carers were providing in the early evening, and why they received the higher rate direct payment when Mr K and Miss L were mobile and did not require personal care. The panel agreed to continue the package until September 2015 whilst this information was gathered.
  5. Mr J told the Council his wife then suffered a mental health crisis as she was concerned about the children losing support, which they considered was essential respite. The Council visited Mrs J to explain it had not been proposed to remove all support. There is evidence Mr and Mrs J were told it was unlikely that adult social care would agree to provide the existing care package and would install cameras to monitor Mr K and Miss L’s night-time movements.
  6. Mr K and Miss L were referred to adult social care in August 2015. The children’s social worker reviewed their needs in September 2015 and spoke to Mrs J about her mental health. In October 2015 the panel agreed to continue the care package whilst a further detailed assessment was carried out. It sought further information from Mr K and Miss L’s carers.
  7. In January 2016 the panel considered the further assessment and a submission from Mr F setting out the importance to the family of the existing care package. The panel decided to reduce the direct payment to the lower rate and to reduce the waking night support from 12 hours to nine hours (from 10pm to 7am) because Mr K and Miss L did not go to bed until 10pm. The changes were to take effect from 9 March 2016. The Council wrote to Mrs J with the decision on 18 January 2016. It said that whilst Mrs J needed support, this did not require Mr K or Miss L’s support to be maintained or increased.
  8. Mrs J was distressed by the decision and it was noted Mr K and Miss L were affected by their mother’s distress.
  9. At a child in need review meeting in March 2016, which Mr F attended, the Council said an audit of the direct payment accounts had shown there were unused hours amounting to £6,579.97. Mr J had told the Council they saved hours to provide support to Mr K when the family went on holiday.
  10. Mr F asked the Council to assess Mrs J’s needs as a carer under the Care Act 2014. The Council did so in October 2016. This found the support provided to Mr K and Miss L gave Mrs J respite.

Transition to adult services

  1. Following the referral to adult social care in July 2015, Mr K and Miss L’s cases were discussed at a transition meeting in March 2016. There is no evidence a transition plan was completed. An adult services social worker was allocated to Mr K and Miss L in July 2016, a few months before their 18th birthdays.
  2. The social worker’s assessment of Mr K’s and Miss L’s adult care and support needs was completed in January 2017. It said their needs could be met with a shared personal assistant and without the waking night support.

Mr F’s complaint

  1. Mr F complained to the Council in June 2016 about the reduction in Mr K and Miss L’s support package. He said it had had an adverse impact on Mrs J, whose mental health had suffered. Mrs J also said the reduction in support meant she had been unable to return to studying and had had to close her business.
  2. Mr F also complained that the Council had not carried out a carer’s assessment of Mrs J, and about Mr K and Miss L’s transition to adult social care.
  3. Mr F said the Council was not complying with its duties under the Care Act 2014. He told the Ombudsman the Council appeared to have decided that because Mr K and Miss L had been assessed under the Children Act 1989 its resources could not be used to support an adult carer (Mrs J) under the Care Act 2014. Mr F said this was wrong because the Care Act said councils should promote wellbeing and this could apply to children and their carers when they were subject to transition assessments. He said the Council had not properly considered Mrs J’s mental health needs when it reduced the care package.
  4. The Council replied on 22 July 2016. It said the Care Act 2014 did not apply to Mr K and Miss L until they turned 18 later that year. The child and family assessment in May 2016 had considered how the Council could support the family as a whole. This meant there had not been a separate carer’s assessment for Mrs J. The Council accepted Mr and Mrs J should not have been told cameras would be installed to monitor Mr K and Miss L’s movements. However, night time disruption could be monitored with movement sensors if necessary. There had been transition planning between children’s and adult services as Mr K and Miss L’s cases had been considered at transition meetings.
  5. Mr F remained dissatisfied and met with the Council in November 2016. He said Mrs J had made suicide attempts in 2015 and 2016 and asked for the complaint to be escalated to stage 2. Mr F also approached the Ombudsman, but it was too soon for us to consider his complaint.
  6. The Council asked Mr F to clarify his complaint and he did so in February 2017. The Council initially requested a further meeting with Mr F, but following contact with the Ombudsman in April 2017 it agreed to progress the complaint to stage 2. The Council appointed an investigating officer in June 2017. It says this delay was caused by a lack of available officers.
  7. The investigating officer agreed a complaint summary with Mr F in September 2017 and issued their report in December 2017. The report partially upheld three of Mr F’s complaints. It found:
    • The Council should have carried out a parent carer’s assessment of Mrs J under the Children and Families Act 2014 when the Council became aware of the deterioration of her mental health in July 2015.
    • There had been no transition plans for Mr K and Miss L.
    • There had been a lack of communication with the family about transition and they had not been told when a carer’s assessment could or could not be carried out.
  8. The report did not uphold Mr F’s other complaints. The Council sent its adjudication letter to Mr F in March 2018. It accepted the investigator’s findings and apologised.

The stage three review panel

  1. Mr F asked to escalate the complaint to stage 3. The Council agreed to hold a review panel but could not find suitable members or dates until September 2018. There then followed correspondence between Mr F and the Council about the role of the panel and the experience and independence of the panel members. Mr F was concerned the panel would not consider the Care Act 2014.
  2. The Council sought legal advice and in October 2018 told Mr F the stage 3 panel would focus on the investigating officer’s report. It would consider the Care Act in relation to the transition to adult social care and support for parent carers of children in need of care and support.
  3. Mr F agreed to proceed to stage 3 in February 2019. A panel was scheduled for April 2019 but had to be cancelled. The panel met in June 2019, it upheld the findings of the investigating officer. Mr F complained to the Ombudsman. He sadly passed away before my draft decision statement was issued. Mrs J asked for the investigation to be progressed.

My findings

  1. If a council has investigated something under the children's social care complaints procedure, the Ombudsman would not normally re-investigate the complaint unless we consider the independent investigation was flawed. I have therefore firstly considered whether there was any fault in the way the Council carried out the stage 2 investigation.
  2. The Council appointed an investigator who had had no previous involvement with the matter. The independent investigator agreed a statement of complaint with Mr F. The investigation took account of evidence from a range of sources and addressed each of the complaints in detail. The report shows the investigator weighed the evidence and drew objective conclusions from it. The report is comprehensive and makes relevant recommendations. The investigation was overseen by an independent person who was content with the conclusions. Having considered all the information available to me, I find the investigation was carried out in line with the complaints guidance. I have therefore not re-investigated the whole matter.
  3. My role therefore is to look at whether the Council properly considered the findings and recommendations of the independent investigation and the stage 3 review panel. I have also considered whether there was any fault or injustice that was not identified by the independent investigator or the stage 3 panel.

Mr K and Miss L’s care package 2015 – 2016

  1. It is not the Ombudsman's role to decide what, if any, care and support a person needs. That is the Council's role. The Ombudsman's role is to consider if the Council has followed the correct process for establishing a person's needs and if it acted correctly when this process was complete.
  2. I have therefore considered the 2015 and 2016 assessments and whether they were carried out in line with guidance. Mr K, Miss L and Mrs J participated in the process. The assessments are detailed and set out clearly what Mr K and Miss L’s needs are and how these will be met. There is no evidence of fault in the way they were carried out.
  3. I have also considered how the complex care panel decided to reduce the care package. Its role was to review and agree the care package being provided to Mr K and Miss L when they were children under the Children Act 1989. By January 2016 it had had several assessments and Mr F’s submission. The panel was aware of Mrs J’s mental health needs and the family’s concerns about reducing the package of support. It was entitled to make the decision and there is no evidence of fault in the way it did. I cannot therefore criticise the decision to reduce the care package.

Carer’s assessments of Mrs J

  1. The 2015 core assessments of Mr K and Miss L do not include an assessment of Mrs J’s needs as a carer. This was not fault as the Council was not required to carry out a parent carer’s assessment until after April 2015.
  2. The investigating officer found a parent carer’s assessment should have been carried out later that year when the Council became aware of Mrs J’s mental health crisis. I consider it was fault not to do so as it was required by the Children and Families Act 2014. However, I do not consider this fault led to significant injustice for Mrs J. This is because the complex care panel was aware of her mental health needs when it considered the care package in January 2016.
  3. Mr F was right to say the Care Act 2014 requires councils to assess the needs of an adult carer of a child with care and support needs, if the child is likely to require care and support after they turn 18. But it does not require a separate assessment to be done.
  4. I have therefore considered the child and family assessments completed in May 2016. They note Mrs J’s mental health needs, how these impact on her ability to provide care, and Mrs J’s views that reduced support has prevented her returning to education or running her business. I consider this to be an assessment of Mrs J’s needs as a carer and of the whole family. The Council then carried out a carer’s assessment under the Care Act in October 2016 and there is no evidence of fault in that.
  5. The assessments say the reduced care package provided respite for Mr and Mrs J and met Mr K and Miss L’s needs. I realise Mrs J disagrees with that, but it was a decision the Council was entitled to make, and I have seen no evidence of fault in the way it was made.

Transition to adult care services

  1. There was no fault by the Council when it allocated an adult social worker to Mr K and Miss L three months before their 18th birthdays. A transition plan was not completed, which was fault, but I do not consider this caused significant injustice. This is because there was no gap in support. The May 2016 child and family assessment had set out their needs and how these would be met, and an adult care and support assessment was carried out two months after they turned 18. So I do not consider the lack of a transition plan affected Mr K and Miss L’s provision.

Complaint handling

  1. The Council failed to progress Mr F’s complaint to stage 2 from July 2016 to June 2017. This caused time and trouble to Mr F who had to bring the complaint to the Ombudsman for it to be progressed.
  2. The investigating officer’s report was issued within 65 working days of the complaint summary being agreed, which is in line with the guidance.
  3. There was delay in convening the stage 3 panel, but I do not consider this was solely caused by maladministration by the Council. Mr F was concerned about the panel’s remit and knowledge and the panel could not proceed until those matters had been agreed. However, there was delay by the Council between March 2018 and September 2018, and between February 2019 and May 2019. This caused further time and trouble.

Agreed action

  1. Within a month of my final decision, the Council has agreed to apologise to Mrs J and pay her £200 to acknowledge the avoidable time and trouble the family was put to in pursuing their complaint.

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Final decision

  1. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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