Summary: Ms X complains the Council delayed making Direct Payments for her son’s respite care when they moved into the Council’s area. The Ombudsman has found no evidence of fault in the way the Council considered these matters.

The complaint

1. The complainant whom I shall refer to as Ms X complains the Council delayed making Direct Payments (DP’s) for her son Y’s respite care when they moved into the Council’s area. Ms X says this has caused her distress and difficulties in caring for Y.

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What I have investigated

2. I have investigated Ms X’s complaint about the Council’s delay in making DP’s following her transfer into the borough. The final section of this statement contains my reasons for not investigating Ms X’s concerns about the time taken to carry out a needs assessment or the outcome of any assessment. And the way the Council dealt with Y’s Special Educational Needs (SEN) and arranged schooling for him.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)

(Local Government Act 1974, section 24A(6), as amended)

4. 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)

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How I considered this complaint

5. I have read the papers submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided. I have explained my draft decision to Ms X and the Council and considered the comments received.

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What I found

6. The Government’s SEN Code of Practice 2015 refers to the transfer of a child with an Education Health and Care Plan (EHCP) between local authorities. Once the plan is transferred between authorities the new authority becomes responsible for maintaining the plan and securing the special educational provision named in it. It says the new authority may on transfer of the plan conduct a new EHC needs assessment regardless of when the previous EHC needs assessment took place. This is important where the plan includes provision secured using Direct Payments.

Events leading to the complaint

7. Ms X lived in the London Borough of Croydon with her son Y. Y has Autism, complex needs, challenging behaviour and has a Child Protection (CP) plan. Croydon Council assessed him as needing a care package of six hours of respite care a week during school term time and 16 hours a week during the school holidays. Croydon paid Ms Y DP’s to cover the respite care needed.
8. Ms X moved accommodation and into the Council’s area in May 2018. Croydon Council alerted the Council to their move in June 2018. Ms X also told the Council of their move in June 2018 and asked it to continue paying her the DP’s she received from Croydon. The Council responded due to its protocols it carries out a Single assessment first which includes a carers assessment with any new referral.
9. Under the Pan London Procedure, the Councils held a transfer in conference in June 2018. Tower Hamlets Council agreed to take on Y’s case and to continue the CP plan. It recommended a Holistic Assessment including a Carers Assessment. Ms X did not attend the meeting.
10. A social worker visited the family home and met with Y. The Council says Ms X refused to sign the consent form or allow a further assessment of Y. Ms X then complained and said she wanted the package from Croydon reinstated in Tower Hamlets as she had been without respite support since moving to the area. Ms X said the Council did not need to do a reassessment as Croydon had recently done one in May 2018.
11. The social worker tried to carry out a further visit to discuss DP’s in July 2018, but the visit failed as Ms X was not at home. Ms X said the family were out of the country in July 2018 and back in September 2018.
12. In August 2018, the Council responded to Ms X’s complaint and agreed to continue to provide the same levels of support she received from Croydon as an interim position. It said this would be until it completed its own assessment to consider the appropriate support needed. The Council explained it needed to carry out its own assessment to decide the support Y needed even though Ms X did not consider it necessary. This would allow Ms X to receive the respite she needed. And it was a requirement for all councils when deciding the support needed. The Council told Ms X to progress matters she needed to complete the paper work and give her consent as she had not done so. The Council said it would backdate the payments from the date of the transfer in conference and pay it in a one-off payment to her.
13. In September and October 2018, the Council carried out CP visits to see Y to discuss the DP’s as well as get Ms X’s consent and further information for the assessment. But the visits were unsuccessful as Mrs X was not at home as agreed. The Council sent Ms X information about an agency who provided support to process DP’s.
14. In October 2018, the Council sent Ms X a bank authority form to sign but she responded querying the hourly payment rate. The Council explained the payments and asked her to sign for the one-off payment. Ms X disputed the hourly rate and starting date. Ms X said it was illegal for her to accept a one-off payment and disagreed with the wording on the bank authority form. Ms X asked for the DP payment.
15. The Council contacted Croydon Council to find out more information about the disputed rates of pay. Croydon responded with the information.
16. The social worker tried to visit Y at home in October 2018 to discuss DP’s but reported another unsuccessful visit. The Council says Ms X emailed disputing the start and end dates for payments. The Council responded explaining the hourly rate. It confirmed the backdated amount depended on the outcome of the assessment. This was still to be completed due to the family’s lack of engagement.
17. In November 2018, the social worker met with Y at home and discussed the DP’s. Ms X contacted the Council in December 2018 saying she remined unhappy with the wording on the bank authority form and edited the contents. The Council explained Ms X could not edit the documents as it made it invalid. The Council said it removed the wording ‘one off’ to expedite the payment. Ms X sent the bank authority form and the Council prepared to pay arrears from May to October 2018 for £2275.
18. The Council told Ms X that after October 2018 the DP respite care would reduce to three hours a week based on the Council’s new needs assessment. Ms X says the Council advised her it decided on the new needs assessment due to her lack of engagement.
19. Ms X emailed the Council demanding payment and the Council confirmed it would pay once it completed the paperwork. A social worker met with Y at home to discuss the DP’s and gave details of the DP worker.
20. The Council made the payment on 19 December 2018. In January 2019, the Council agreed to pay Ms X from the period from October 2018 onwards for three hours. This was with the condition that any change in the care plan would be backdated and paid in a further one-off payment to Ms X. The Council says Ms X has not submitted any paperwork, so it asked a social worker to follow this up to resolve issues about the DP.
21. The social worker contacted Ms X to arrange a Child Protection visit and for her to sign the agreement and to process with DP’s.

The Council’s response to the complaint

22. The Council says its aim is to ensure a seamless transition of children between Councils especially where they need complex care packages and ongoing support to ensure the needs are continued to be met. It says the time taken between the family moving into the borough and the Council paying was unacceptable. But it says it faced several issues;
• Ms X’s lack of engagement with the initial request to carry out a care package review. This would enable the Council to inform the care plan leading to it offering support and the DP being made and issued.
• Ms X refusal to engage with the CP procedures running concurrently with the requirement to carry out a care package review. This resulted in Y not being seen, Ms X not engaging within visits or meeting with professionals to try and remedy issues when they first arose. So, there was no current or up to date assessment of needs could be carried out. This led to the Council recommending it provide three hours of respite.
• A misunderstanding of the terminology of how the Council would make payments to Ms X. This included the use of ‘one-off’. This was describing the mechanism of the payment rather than it being a final payment as the Council recognised that an ongoing package of support was needed.
• Issues with Ms X not completing the required paperwork to enable the Council to pay her.
23. The Council says after the transfer in conference it agreed to honour the care package offered by Croydon. Although this is not common practice as usually the receiving borough carries out an assessment to inform the transfer. But in this case, it did not happen due to the CP procedures in place. So, the Council agreed to honour the payment to prevent a break in service for Y. The Council says it did not make the payment until 19 December 2018 and considers it unacceptable although the issues it highlighted contributed to the delay.
24. The Council says it agreed to three hours a week from 15 October 2018. But the payment is still outstanding as Ms X has not agreed to the care package and is disputing the outcome of the assessment. The Council is reviewing the care package and is likely to recommend a higher package of support. So, it has agreed to make a further back dated payment through another one-off payment to cover the period from October 18 until the start of any new package. The Council said it agreed this with Ms X in November 2018.
25. The Council says Ms X has still to agree to the required procedures and documents to allow the continuing payment and the Council is trying to resolve the matter. To do so the Council proposes:
• To apologise to Ms X for the time it has taken for her to receive a payment. The Council hopes the issue will not happen again.
• To carry out a review of the policies and procedures about the transfer of cases to ensure a streamlined procedure for any children transferring to the borough receiving a DP.
• It will honour any receipts or invoices sent by Ms X showing financial hardship or loss by Ms X and ensure it progresses payments quickly.
• A payment of £500 to Ms X to recognise the issues she faced and the delay in receiving the DP’s.
26. The Council says however, it needs Ms X to continually provide evidence of support and services procured to ensure it remains compliant with financial support services offered by DP’s.

My assessment

27. The documents provided by the Council show it became aware of Ms X’s move into the borough in June 2018. The Council agreed to take on Y’s case. But wanted to carry out a needs assessment first to decide the support needed. This is according to the SEN Code of Practice. And the Council can require a new needs assessment even if the previous council carried out a recent one. The documents show the Council explained this to Ms X.
28. The Council agreed to pay Ms X the same level of DP’s as Croydon Council as an interim position. It even agreed to back date to the date Ms X moved into the area although there was no need for it to do so. It is unfortunate that it has taken some time to make the payment to Ms X. But I am satisfied it is not due to any fault by the Council because of the issues it has faced in making the payment and the complainant’s own actions.
29. As I have not found any fault by the Council, I do not consider it necessary for Ms X to receive a remedy. However, as a goodwill gesture the Council has offered to resolve the complaint by apologising to Ms X and paying her £500 in compensation. It will consider paying Ms X for any financial hardship or loss she has suffered on evidence of receipts or invoices. It also intends to review its policies and procedures about the transfer of cases to ensure it streamlines procedures for children transferring with DP’s.

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Final decision

30. I am completing my investigation. There is no evidence of fault in the way the Council dealt with a payment of DP’s to Ms X following her son’s transfer into the borough.

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Parts of the complaint that I did not investigate

31. I have not investigated Ms X’s concerns about the Council’s delay in carrying out a care needs assessment and SEN and schooling concerns as these are ongoing issues. Ms X needs to pursue separate complaints to the Council about these matters. Once she has completed the Council’s complaints procedure, she can come back to us if she wishes to pursue further complaints.

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Investigator's decision on behalf of the Ombudsman