The Ombudsman's final decision:
Summary: Mrs X complained about the Council’s decision to remove her adult disabled daughter Miss D’s day centre transport. The Council failed to properly apply its transport policy and to properly consider the impact on Miss D and Mrs X. The Council has agreed to reassess Miss D’s transport needs. Depending on the outcome of the review it has agreed to consider whether an additional remedy is appropriate.
- Mrs X complains on behalf of her disabled adult daughter, Miss D, about the Council’s decision to withdraw transport to the day centre she attends. She says the Council has done this without properly considering her daughter’s or the family’s needs. Because of this Miss D has missed some days at the centre, or has arrived late, when Mrs X was not well enough to take her.
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 information supplied by Mrs X and I have spoken with her on the telephone. I have considered the Council’s response to my enquiries and the relevant guidance.
- I gave Mrs X and the Council the opportunity to comment on a draft of this decision.
What I found
- The Council’s Adult Social Care Transport Policy of April 2018 states “Under the Care Act 2014, the Council has a duty to arrange care and support for those with eligible assessed needs. This includes an assessed eligible need to enable a citizen to get around in the community safely, to make use of necessary services and to use public transport. Citizens with assessed eligible needs and their carers have the right to have their views taken into account by the Council when it is assessing and considering provision of transport support or services.”
- The policy states “part of the needs assessment process will consider what support, if any, is needed in getting out and about; including for example, risk management, accessing reasonable alternative methods of transport and whether or not it is reasonable to expect the citizen to make their own arrangements.”
- The Council will assess someone to consider if they have an eligible need for transport provision. The eligibility criteria states that people who have a vehicle through the Motability scheme will be expected to use this. But, “Where it is identified that a carer will provide transport it is important to record that the impact of this has been appropriately considered in the carer’s assessment. Where it is concluded that the carer cannot provide transport because it would place an unreasonable demand on them, then the assessment may lead to transport being provided or arranged by the Council.”
- The Care and Support Statutory Guidance states councils need to consider if carers are “willing and able” when a person’s assessed needs are being met by a carer.
- Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. Where a review is being undertaken, where a person has a carer, the council should consider whether the carer’s support plan requires reviewing too.
- Motability is the body that runs the mobility car scheme for those in receipt of Disability Living Allowance and Personal Independence Payments. Unless the council in question is the legal appointee for the disabled person, it is not in charge of the Motability agreement and cannot specify how a mobility vehicle can be used.
- Miss D is profoundly deaf, visually impaired and has a significant learning disability. The Council’s assessment of Miss D’s needs in February 2015 sets out that Miss D needs constant supervision indoors and outdoors as she is unable to keep herself safe. Mrs X is Miss D’s mother. She last had a carer’s assessment in 2013. At that time Mrs X worked part-time. She has since stopped working due to a health condition. Mrs X looks after all of Miss D’s personal care needs and provides one to one support at home.
- Miss D’s package of support includes attendance four days a week at a day centre. The Council provided transport to and from the centre as part of Miss D’s care package. Her care plan states Miss D likes to go out in the community but requires the support of a member of staff at all times due to her visual and hearing impairments. It records Miss D does not have mobility issues but requires support walking over uneven ground and to avoid obstacles. She does not appear to have road safety awareness and will not necessarily be able to find a safe place to cross the road.
- In March 2018 the Council reviewed Miss D’s entitlement to transport. The review states ‘recommendation to cease transport’. In the review the Council noted this was because Miss D received higher level mobility allowance and was able to access transport with her mother. It goes on to say ‘Also has a motability/disability car’.
- Mrs X says she wrote to the Council to appeal this decision. She also emailed the Council on 29 May. In the email Mrs X wrote “whilst I am fully aware that we have a mobility car there is no one available to drive it in the morning as my husband has to go to work. I suffer from [a health condition] and mornings are horrendous and there is no way I can get [Miss D] to [the day centre] for 9.30. [Miss D] is unable to use pubic transport by herself she needs constant supervision due to her severe learning difficulties”.
- The Council sent Mrs X a letter on 13 June which she received on 26 June. This letter stated “the appeal outcome is that transport will cease from 13 July 2018. The decision is based upon the fact that you are in possession of a mobility car and that should be used for [Miss D’s] transport needs. If the mobility car is not available for [Miss D] then you will need to find and fund an alternative method of transport eg taxi to support him [sic] to access services and appointments. I do appreciate your personal circumstances but there are no exceptions to this element of the Nottingham City Adult Social Care Transport Policy”.
- Mrs X is currently transporting Miss D to the day centre. She cannot take her some days and on others Miss D arrives late. This is dependent on Mrs X’s own health.
- The Council removed Miss D’s transport to the day centre because Miss D has a mobility car. The Council can consider Miss D’s mobility car but the Council’s policy states that where a carer is expected to provide transport, the Council will consider the impact of this in its assessment. If it places unreasonable demands on the carer, the Council may provide transport. In her appeal Mrs X set out the difficulties she would have in transporting Miss D due to her own medical condition. The Council failed to comply with its policy as it has not considered Mrs X’s circumstances in reaching its decision. It also failed to properly consider Miss D’s needs in line with its policy. This is fault.
- Mrs X has not had a carer’s assessment since 2013. The previous assessment does not reflect the change in Mrs X’s own health. In addition, there is no evidence the Council has reviewed Miss D’s needs assessment since February 2015. The delay in reviewing Miss D’s needs assessment and Mrs X’s carer’s assessment is fault.
- Following a separate complaint to the Ombudsman, the Council has already agreed to reassess those disabled adults whose transport was removed. This includes Miss D. The Council will carry out this review by February 2019.
- The Ombudsman’s role is to investigate complaints of fault by a council. Where we find fault we then consider what the impact (or personal injustice) of the fault was on the complainant. We then look to provide a remedy for the personal injustice caused. In this case, I cannot properly assess what the extent of the injustice to Miss D and Mrs X is until the review of Miss D’s transport needs is completed. The review will determine whether Miss D is entitled to transport.
- The Council has agreed to review Miss D’s entitlement to transport. It has agreed to do this by 2 February 2019. This should take into account Miss D’s and Mrs X’s current circumstances.
- The Council has also agreed to review Mrs X’s carer’s assessment and Miss D’s needs assessment. It should do this within three months of the date of the final decision on this complaint.
- Once the Council has reviewed Miss D’s transport needs, should Miss D’s transport be reinstated, the Council has agreed to consider whether any additional remedy is appropriate, in line with our guidance on remedies, for the potential loss of transport provision, to and from the day centre, from the date the transport stopped to the date it was reinstated. It has also agreed to consider the impact this has had upon Mrs X. It should do this within one month of the date of the decision regarding the transport.
- I have completed my investigation. There was fault leading to injustice. The Council has agreed to take action to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman