The Investigation

The complaint

1. Mrs C complained the Council failed to properly consider the decision to remove funding transport to attend day support for her son, Mr D, because he has a Motability car. Mrs C says although Mr D has access to a Motability car because of health and other caring issues neither she nor her husband, Mr C, can provide transport to his day support.

2. Mrs C says the Council’s decision has resulted in added pressure on her and her husband; and costs neither they nor Mr D, can meet.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. We have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

5. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.

6. We may investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

7. We may investigate complaints from the person affected by the complaint issues or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. Here, we decided Mrs C was a suitable representative for Mr D. (Local Government Act 1974, sections 26A and 34C, as amended)

Council’s policy

8. West Sussex County Council Adults’ Services – Transport Policy, the “Transport Policy” says,

• 2.2. Adults Services has a legal duty to provide transport to customers who are eligible for social care support in certain circumstances.

• 3.4 Adults Services will only fund transport for people with social care needs, where there is no suitable or appropriate alternative.

• 4.4. “The assumption is that customers will travel independently except where assessment shows that this is not possible. The test used in the assessment should be: “If Adults Services does not provide transport, would this result in an eligible need for services going unmet?” Practitioners must consider otherways in which the customer can reasonably be expected to attend services and/or support making his/her own arrangements to get there.”

• 4.9. Some people’s transport arrangements may change following a reassessment of their social care needs. Where a change to a person’s support plan is necessary, the impact upon the person’s wellbeing must be assessed as well as any impact upon their carer, in line with the Care Act.

• 4.11. Where people incur additional expenses for transport related to their disability, this will be considered in the financial assessment process and allowances made if appropriate.

9. Appendix 1: When funding for transport would not be provided says,

• “Transport should only be provided to the nearest available day service/day opportunities that meet the person’s assessed needs. If a person chooses to attend a service which is further away from their nearest appropriate service, then they will be expected to pay the whole cost of their transport……

• If someone has their own “Motability” vehicle which they drive themselves, we expect the person to use that vehicle to travel to the location of the day opportunity. If an individual or carer makes the decision that the Motability vehicle will not be used, then the onus must be on them to make alternative travel arrangements in the first instance.

• If someone has a Motability vehicle but they do not use it to transport themselves to day services/opportunities because there is no-one available to drive it for example, we can support them to move from a Motability vehicle to a mobility payment - via Welfare Rights Officers and voluntary information and advice organisations.”

Care and Support Statutory Guidance

10. “1.1 The core purpose of adult care and support is to help people to achieve the outcomes that matter to them in their life……

11. 1.2 Local authorities must promote wellbeing when carrying out any of their care and support functions in respect of a person.” This is sometimes called ‘the wellbeing principle’ because it is a guiding principle that puts wellbeing at the heart of care and support.

12. 10.25 “The duty to meet eligible needs is not discharged just because a person has another entitlement to a different service which could meet those needs, but of which they are not availing themselves. The needs remain ‘unmet’ (and so the local authority remains under a duty to meet them) until those needs are actually met by the relevant service being provided or arranged. Local authorities should therefore consider how to inform and advise people on accessing any such entitlements at the earliest stage possible, as well as working collaboratively with other local services to share information.”

Personal budgets

13. The Care and Support guidance says: “Everyone must receive a personal budget as part of the care and support plan if the local authority is meeting their needs, either because the needs are eligible needs or because it has chosen to meet them. The budget must be allocated “in a timely manner, proportionate to the needs to be met”.

Review of care and support plans

14. The review process should be person-centred and outcome focussed. The council must involve the person and the carer where feasible and must consider an independent advocate.

15. Plans must be kept under review and councils are expected to review at least annually. Periodic reviews must not be used to arbitrarily reduce a care and support package and should cover:

• have circumstances or needs changed?

• what is working in the plan, what is not working and what might need to change?

• have the outcomes identified in the plan been achieved?

• does the person have new outcomes they want to meet?

• could improvements be made to achieve better outcomes?

• is the personal budget enabling them to meet their needs and the outcomes identified in the plan?

• is the personal budget still meeting the sufficiency test?

• are there changes in the person’s community support networks which might impact on the plan?

• is the person, carer or advocate satisfied with the plan?

Carers’ assessments

16. Where an individual provides or intends to provide care for another adult the council must consider whether to carry out a carers’ assessment if it appears the carer may have any level of needs for support. Carers’ assessments must seek to establish:

• the carer’s need for support;

• the sustainability of the caring role itself including both practical and emotional support the carer provides to the adult;

• whether the carer is currently able and willing to continue to provide care for the adult needing support; and

• the carer’s activities beyond their caring responsibilities and the impact of caring upon those activities.

How we considered this complaint

17. We have produced this report following the examination of relevant files and documents.

18. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

What happened

19. Mr D receives support from the Council which includes access to a day centre. Mr D’s parents, Mrs C and Mr C, support him in the community. They also support Mr D’s grandmother who has significant needs, and lives with them.

20. Mr D has a Motability car which his parents use to support him. A Motability car is available to those who receive certain eligible benefits. Those eligible are offered new cars through a lease scheme.

21. In 2021 the Council agreed funding for Mr D to attend a day centre four days a week. This included the cost of the transport. The day centre is not Mr D’s nearest day centre but meets his needs. The Council has not identified an alternative day centre which is nearer and meets Mr D’s needs.

22. In April 2024 the daily transport costs for Mr D increased from £45 to £47 and the provider asked for an uplift in the transport costs. This triggered a review by the Council. On 1 May 2024 the Council notes, “Review for transport only.”

23. The Council carried out a desk top review and applied its Transport Policy which said it expected people with the benefit of a Motability car to transport themselves to their day centre. A note of the review says,

“Call to mum who confirmed that Mr D is in receipt of higher rate PIP mobility. She has been advised that Mr D is required to self fund the transport, as per the transport policy. She has been requested to make contact with the transport services directly to pay”.

24. Mrs C says her mother-in-law needs two people to support her with transfers. It is therefore impossible to get both her mother-in-law up and ready, and transport Mr D to the day centre in the mornings.

25. On 7 June a support broker spoke with Mrs C to advise her funding for transport would stop. Mrs C tried to appeal the decision, however appeal links provided by the Council did not work and she had to contact her MP to progress matters. The Council responded on 27 July saying it had properly applied the Transport Policy and,

“I do recognise that this places pressures on your family due to your health issues which prevent you from driving and your husband’s caring responsibilities for both Mr D and his mother. I have asked the responsible social care team to contact you to arrange a Carers Assessment for your husband”.

26. Since the funding has stopped Mrs C says they pay the transport company £80 a week to pick Mr D up from the day centre. This is without an escort which the Council previously funded. This is a significant amount and has caused them all financial hardship.

27. The Council offered Mr C a carers assessment and financially reassessed Mr D to take into account his fuel costs to the day centre.

28. In response to our enquiries the Council says its review was proportionate given the high-level of reviews needed in a short time frame. The Council says had there been a change in Mr D’s needs the officer would have reflected them in the review.

29. However the Council accepts it did not properly explain its reasons for ending funding for Mr D’s transport. It also accepts it frustrated Mrs C’s appeal rights by providing inadequate appeal links resulting in time and trouble, and her having to contact her MP to progress matters.

30. The Council also says from further conversations with the family it is now aware it needed to complete a more holistic assessment. Since we made enquiries it says it has completed a carer’s assessment for Mrs C as it was not aware Mr C’s mother needed two carers to support her. It will also complete a Strength and Needs care assessment followed by a further carer’s assessment if needed.

31. In response to a draft decision of the complaint the Council says the review completed was not solely for the purpose of reducing services; but a review of the case and support in place and it was reasonable to consider the application of the revised Transport Policy within this review.

32. The Council also says a desk top review was completed not with the sole purpose of applying the Transport Policy but because of the Council’s perception of the simplicity of the review.

Conclusions

33. We do not find fault in the Council having a transport policy, however the Council must apply the policy properly and not fetter its discretion.

34. The Council’s Transport Policy, in particular Appendix 1, says it will not fund transport if a person has a Motability car. This is a blanket policy which prevents the Council from using discretion and is fault.

35. While the Transport Policy includes wider legislation such as the well-being duty set out in the Care Act; the Council implemented the policy without proper consideration of these wider duties.

36. The Council says the review undertaken was not solely to consider a reduction in services but of Mr D’s care support. The review notes however do not provide any evidence of the reviewer asking any questions about services other than those surrounding Mr D’s transport to the day centre. We therefore consider on balance the sole purpose of the “review” was to reduce Mr D’s personal budget so he could become responsible for paying his transport costs as he received Personal Independence Payments (PIP). The Care and Support Statutory Guidance says councils should not compete reviews purely to reduce services. The Council is therefore at fault for not acting in line with this guidance.

37. Officers did not review Mr D’s needs adequately when deciding to reduce his support package. They did not:

• review Mr D’s needs holistically;

• reassess Mr D’s needs and produce a support plan and personal budget which identified Mr D’s assessed needs and how they were to be met which included attending and access to the day centre;

• consider how Mr D would access his day centre;

• consider Mr D’s overall wellbeing in its decision making process;

• have a discussion with Mrs C, before telling her that Mr D would not be eligible for transport; and

• tell Mrs C there was an appeal route.

38. The Council says that because of the number of reviews undertaken it could only do a desk top review. While a desk top review may be a proportionate response, the Council did not review Mr D’s needs in line with the Care Act and the associated Care and Support Statutory guidance. This was fault.

39. The Council also failed to properly consider how Mr D would get to his day centre by:

• not considering Mr C’s and Mrs C’s needs as carers and whether they were “available and willing”. There was an expectation that as Mr D had a Motability car his parents could transport him to his day care. This decision failed to consider the other caring roles Mr C and Mrs C have and whether this was possible;

• not considering alternative arrangements for Mr D to get to his day care. In particular that without his parents he would need to pay £80 a week to fund his transport costs; and

• not offering alternative day care which met Mr D’s needs, and that he could access.

40. The failure to meet Mr D’s assessed eligible needs to access day care and properly consider his carers’ needs is not in line with the Care Act or the Care and Support Statutory Guidance and is fault.

41. Mrs C also had inadequate notice, a period of three weeks, to challenge the Council’s decision before transport ended. The family had no alternative but to fund transport or Mr D would miss his day care.

42. While the Council could decide to withdraw funding for transport it must make a proper decision that takes account of relevant factors and not fetter its discretion. In the absence of it doing so, we find Mrs C has the uncertainty of not knowing whether had the Council acted without fault it would have continued to fund Mr D’s transport. Mrs C has also had the frustration and anxiety that Mr D could not attend his day support because of the transport costs.

43. We have found fault in the Council’s failure to properly consider providing transport for Mr D to attend his day centre. This has caused uncertainty about whether the costs he has incurred are appropriate. We consider the actions below are suitable to remedy the personal injustice caused and improve future services.

44. We have exercised our 26D powers because we consider others are likely to have been affected by the same fault and we make a recommendation to address the potential injustice below.

Recommendations

45. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

46. In addition to the requirements set out above, the Council has agreed to take the following action to remedy the injustice identified in this report.

• Apologise to Mr D and Mrs C for the failures we have identified and the impact this has had on them. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apologies we have recommended in our findings.

• Pay Mrs C £250 for the uncertainty and frustration the Council’s actions have caused her.

• If not already completed, review Mr D’s needs and consider Mr D’s access to day care.

• If not already completed, carry out carers’ assessments for Mr C and Mrs C.

• If on review the Council assesses Mr D has an eligible need for transport so he can access his day support, to repay his travel costs for the period he has been without a Council funded service. This should be on condition Mr D provides records/receipts of what he has paid and is net of allowances the Council has made in his care charges.

• Review Appendix 1 of its Transport Policy to ensure the policy does not fetter officers’ discretion and they are not applying a blanket policy.

• Review the faults identified in this complaint and produce practice guidance to officers about how to apply the Council’s Transport Policy so it is in line with the Care Act 2014 and the associated Care and Support Statutory Guidance. Staff should be updated on the amended guidance through staff training, staff circular or team meetings withing three months of any amendments.

• Provide a notice at local day centres which have been affected by the Council’s Transport Policy suggesting that anyone who thinks they have been similarly affected to contact the Council for further information, and if necessary reassessment.

47. The Council has accepted all our recommendations to remedy the complaint.

Decision

48. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Mr D and Mrs C. The Council should take the action identified in paragraph 46 to remedy that injustice.

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