Luton Borough Council (19 009 477)

Category : Children's care services > Disabled children

Decision : Upheld

Decision date : 02 Sep 2020

The Ombudsman's final decision:

Summary: the Council was at fault in its handling of Ms D’s complaint and it will apologise and make the recommended payment to recognise the injustice this caused. There is no fault in the Council’s actions with regard to the rest of the complaint

The complaint

  1. The complainant, whom I shall refer to as Ms D, complains about the Council’s handling of matters related to support provided by its children’s services team to her and her son who is disabled. Specifically she complains the Council:
  1. wrongly reduced the amount of daily care support that her son receives;
  2. told Ms D that it will not provide or pay for additional care time to provide support for her son to attend hospital appointments;
  3. transferred Ms D’s direct payments to a managed account against her wishes;
  4. refused to allow her to employ carers she has identified; and
  5. failed to deal properly or promptly with her complaint about these matters.

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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. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. 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. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
  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)

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How I considered this complaint

  1. I considered the written information Ms D provided in support of her complaint and discussed the complaint with her representative by telephone. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
  2. I consider the investigation by the Council under stage 2 of the statutory procedure was thorough and detailed and have therefore used this for the basis of my investigation of Ms D’s complaint to this office. The investigator appointed to conduct the stage 2 enquiries interviewed social care staff who had been involved in providing services to the family and considered the Council’s written records to inform her investigation. The stage 2 investigation addressed 31 separate complaints in some detail and the report amounts to 76 pages.
  3. Ms D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  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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What I found

What should have happened

  1. Where a council assesses a child or young person as eligible for services under section 17 of the Children Act 1989 it will calculate a sum to be used to meet these needs. This is referred to as a personal budget.
  2. A parent or carer of and who receives a personal budget is usually entitled to request a direct payment. A direct payment enables the carer to identify and pay a personal assistant for the child or to, for example, pay for short breaks etc depending on what is included in the child’s care plan as an identified need. Recipients of direct payments usually sign an agreement which states how the direct payments will be used and if the Council considers they have not been used properly the Council may revoke an agreement to pay direct payments and pay for the care directly. Luton Borough Council has such a policy which states that it will stop making direct payments if it appears to the Council that the recipient is not using the payment to secure the agreed provision. Its policy states if the Council decides to stop making direct payments it must first give notice to the recipient stating the reasons for its decision and also allows for a recipient to request a review of a decision to cease making direct payments after this.
  3. Luton’s guidelines on direct payments says that direct payments may be spent on, for example, employing a personal assistant but also states that they cannot be used to employ someone who does not have satisfactory Disclosure and Barring (DBS) clearance or references.
  4. Luton Borough Council says that it permits recipients of direct payments to “bank” (accumulate) hours which are provided for social care but not to bank hours provided for personal care.
  5. The Council says it uses the child in need assessment/review process to consider/update a child’s needs every 6 months.
  6. The statutory children’s complaints procedure details timescales for providing response to complaints made under this process. These timescales provide for a response to be provided in:
    • 10 days at stage 1 of the procedure with a possible extension of 10 more days if the complaint is complex;
    • 25 days at stage 2 with a maximum extension to 65 days, including the adjudication of the investigation report by a senior manager; and
    • 20 days for the complainant to request a review panel and 30 days to then convene and hold this.

What happened

Background

  1. Ms D’s son, X, is 14 years old and has a number of diagnosed medical conditions including severe learning disabilities, cerebral palsy and epilepsy.
  2. Until February 2018 X was provided with a package of care comprising four hours a day. In February 2018 the Council reduced this to two and a half hours a day.
  3. In April 2018 Ms D complained to the Council about a range is issues related to the decision to reduce the care hours. The Council considered the complaint under the statutory children’s complaints procedure.
  4. The Council provided a response at stage 1 just over a month later, in May 2018.
  5. Ms D was dissatisfied with the outcome at stage 1 of the process and asked for the matter to be escalated for consideration at stage 2. The Council appointed an investigator to complete the stage 2 consideration. The investigator agreed the summary of complaint for investigation in November 2018, went on to complete the investigation and issue findings at stage 2 in April 2019. The adjudication of the stage 2 investigation was issued in January 2020 after I had made my enquiries of the Council on the complaint Ms D submitted to this office.
  6. The Council offered Ms D the opportunity to have her complaint considered at stage 3 of the statutory process in January 2020. As I was already investigating the matter by then, Ms D did not pursue this.

Reduction in the daily hours of support for X

  1. According to the information in the stage 2 investigation report, prior to the reduction in the hours of personal care support in February 2018, Ms D had not always been using all the care hours being provided for under the personal budget. For example, the investigator’s chronology states that in 2015 funding equivalent to 120 are hours was left in X’s direct payment account. The Council reclaimed this unspent money as it had not been used.
  2. Up to February 2018 it appears X’s personal budget allowed for fours hours a day of personal care support and three hours a week social care support. This added up to 28 hours of personal care support a week and 31 hours total care a week when including the social support. The Council permits the banking of social care hours but not of personal care hours.
  3. From February 2018 the Council reduced the daily personal care hours to two and a half hours a day. The Council says the reason for this was that Ms D was not using the hours the Council was budgeting for and it calculated the actual amount the personal assistant was providing was two and a half hours a day. It concluded that as this was the amount that the personal assistant was in reality providing it was sufficient to meet X’s needs. The notes of the Child in Need Review meeting in February 2018 where this decision was reached notes that whilst two hours had been provided in the mornings whilst X attended his previous school, the early school transport pick-up time when he changed school in September 2017 only allowed for one hour of personal care from then. Following Ms D’s complaint in May the Council agreed a further one hour a week of personal care so that X could have slightly more personal care provision at weekends.
  4. The 12 hours a month social care was additional to personal care hours.
  5. The stage 2 investigator did not uphold Ms D’s complaint that the Council had wrongly reduced X’s daily care hours arguing that it was not wrong for the Council to budget and provide a personal budget for the actual amount of hours that were needed to meet X’s identified needs and it seemed clear this was being provided in two and half hours a day.

Support with hospital appointments

  1. The stage 2 investigation report says that Ms D told social workers at a child in need review meeting visit in February 2018 that she still needed support when attending hospital appointments with X. When asked she said there weren’t any family members whom she could call on to provide this support. The social work staff were concerned that Ms D had used a personal assistant for 10 hours to support her to a hospital appointment and paid her an additional 10 hours for this when this was not an agreed activity for the personal assistant to be paid for from the personal budget.
  2. The Council’s general position on support for hospital appointments is that it does not specifically provide such support and would not agree to provide additional hours of support specifically for this. The reason given for this is that the hospital can provide transport to and from the appointments and hospital staff can be used for some degree of essential support when at the hospital.
  3. The Council is happy for such support to be provided by using the three hours a week social care support.
  4. In February 2018 the Resources Panel confirmed that social care hours could be used to provide carer support to hospital appointments. The Council sent Ms D a new contract confirming this in March 2018. The start of this arrangement was 1 April 2018.
  5. The stage 2 investigator did not uphold Ms D’s complaint about this.

Removal of direct payments

  1. The stage 2 report confirms that the Council did remove the direct payments and put in place what the Council refers to as a “holding account”. This essentially means that the Council pays the carers rather than a family member doing so via direct payments. The Council said the reason for this was that the direct payments had been misused. Specifically, the Council said Ms D was invoicing for more personal hours than the agreed weekly amount, was using personal carers to complete tasks they should not undertake (ironing and cooking for example), was “banking” personal care hours and using carers that did not have DBS clearance.
  2. The decision to transfer from direct payments to a holding account was one that was agreed at the February Resource Allocation Panel.
  3. The February Resources Panel decided that Ms D should no longer receive direct payments due to:
    • Concerns that care hours were being used for tasks not acceptable as personal care tasks and discrepancy between what the family said the carers were doing and the information provided about this in the log of tasks they provided to the Council; and
    • A history of banking personal care hours and then using them in a block.
  4. The Council wrote to Ms D about this in late February 2018 stating the reason for the decision was that Ms D had banked the personal care hours provision on more than one occasion. Ms D appealed against this decision. The Council says it dealt with the appeal within the complaint.
  5. The stage 2 investigator did not uphold Ms D’s complaint about the decision to remove the direct payments and use the holding account. She commented that the Council has a legal duty to ensure that direct payments are appropriately managed.

Carers

  1. The Council’s chronology identifies problems with carers’ DBS checks dating back to 2017 and also failures by Ms D to submit timesheets and associated invoices for carers meaning they were not paid at the time. The Council also expressed concerns that in early 2018 Ms D was asking carers to complete non-caring tasks that are not included in personal care support such as ironing and household tasks. Additionally, in early 2018 the Council was concerned that invoices were being submitted for personal care hours above the number agreed.
  2. As addressed above the Council took action to cease making direct payments and this was partly the result of issues with carers as detailed.
  3. The Council was unhappy that one of the personal assistants identified and appointed by Ms D was unsuitable given her own particular needs and further to concerns raised by another professional about the abilities of this individual to be a carer for X. Having considered this further, the Council decided that this carer was not suitable and so was not authorised to be a carer for X and would not be paid. For reasons of confidentiality the Council did not provide Ms D with very much detail about the reasons for this decision. Ms D was unhappy that the Council had not contacted the carer directly about this and had not paid her. She was unhappy that the carer was contacting her to ask why she had not been paid.
  4. The stage 2 investigator noted that the Council invited the carer in for a conversation about the role she was undertaking as a carer for X but that the carer declined to come in for this meeting and said she had stopped being a carer for X. The investigator also said that she has reviewed the Council’s decision to intervene in the employment of the carer and decided this was appropriate but also that the Council’s investigations were not completed as the carer said she had stopped caring for X. So, the investigator concluded that the Council did not end up preventing the carer from being a carer for X. As a result the investigator did not uphold this complaint.

Complaint to the Council

  1. A social work team manager provided the response at stage 1 of the statutory complaints procedure in May 2018. Her findings were:
    • the 12 hours a week social care hours can be banked and may be used by the family to assist with hospital appointments providing the family told the Council it was using the hours in this way;
    • the decision to use a holding account rather than make direct payments is permissible due to the concerns about the banking of personal care hours (which is not permitted) on several occasions and the persistence of this despite repeated requests that this did not happen;
    • the reduction in personal care hours was agreed because it was clear that the morning carer could not attend for two hours as s/he arrived at 6am but X leaves for school at 7.20am. Also that the carer arrived in the afternoon before X arrived home from school and waited for 30 minutes for him between 4:00 and 4:30pm before starting to provide any personal care so the full two hours provided for were not being made. So, the “reduction” was not actually a reduction of what was in place but a reflection of the care that was actually being provided to X already. She also referred to the weekend carer not having been DBS checked and the consequent suspension of that carer until that was resolved. She told Ms D that if she wanted the matter considered by the panel again she could ask a service manager to arrange this. She agreed to provide one more hour a week so that X could have slightly more personal care at the weekends.
  2. The officer who completed the stage 1 consideration and wrote to Ms D with her findings told her that if she remained dissatisfied she could ask for the matter to be considered at stage 2. In June 2018 Ms D asked for the complaint to be considered at stage 2.
  3. An investigator was appointed to investigate the complaint at stage 2 in August 2018 and agreed the complaint to be addressed with Ms D in November. The investigator completed his/her investigation and produced a report in April 2019. The adjudication was not issued until January 2020. The time taken to complete the stage 2 investigation and reach an adjudication is considerably outside the statutory deadlines for this.
  4. The adjudication agreed with the investigator’s findings in not upholding 26 of the 31 complaints. Five complaints were upheld by the adjudicator in line with stage 2 investigator’s findings and recommendations. One of these upheld complaints was that the officer who considered the complaint at stage 1 addressed a complaint that was different to that made. Also, that Ms D was incorrectly told that her complaint needed to be made in writing and that consideration of the complaint took too long. To recognise the delays in considering the complaint the Council offered Ms D a payment of £150. It is my understanding that Ms D has not accepted this offer as I am already considering the complaint and will make my own findings and recommendations if appropriate.

Was the Council at fault and did this cause injustice?

  1. There are no grounds for me to conclude the Council wrongly reduced the amount of daily care support that Y receives. The reasons the Council provided for this are based on the evidence of the hours being used and of the care being actually being provided rather than those it had agreed to provide. There is no fault in it reducing the hours to the amount that were actually being provided following a child in need review. I have seen the notes of this child in need review and am satisfied that the matter was considered properly.
  2. The Council says it does not provide specific funding or support for hospital appointments. It told Ms D that she can bank and use X’s social hours for this. There are no grounds for me to conclude this is fault.
  3. I recognise that Ms D did not want to be transferred from direct payments to a managed account. However, again the Council was entitled to do this because it considered the direct payments were not being properly used and managed by Ms D. As the stage 2 investigator said, the Council has a responsibility to ensure that its limited funds are being used appropriately. In addition, its policy/procedures allow the Council to cease the direct payments in the circumstances that were the case here.
  4. The Council intervened in relation to the carers/personal assistants Ms D appointed when it was concerned about DBS checks not being completed and where it was concerned about the suitability/ability of one of the carers to provide the required care. The policy requires carers to have a DBS check and so the absence of this would mean that the Council would need to intervene. In relation to the suitability of one carer, the Council had to act when a referral was made which identified concerns. In the end the carer decided to stop providing care and the Council did not make this decision. If the carer was not paid and considers she should have been, this would be a matter for her to pursue as she is the person who would have suffered an injustice as a result of any fault. There are no grounds for me to consider payment to this carer as part of my consideration of Ms D’s complaint.
  5. There is fault in the Council’s handling of Ms D’s complaint. In particular, the handling of the stage 2 investigation was very delayed though, as I have said, I consider the investigation itself was thorough and I have no concerns about the quality of that investigation. I consider the delay resulted in injustice to Ms D in the form of avoidable time, trouble, inconvenience and frustration. Ms D had to come to this office in order to have the matter resolved and was denied the opportunity to have her complaint considered at stage 3 of the process in a timely manner. I do not consider the Council’s offer of a review panel at stage 3 was acceptable when made in January 2020 after this office had already started to investigate the matter.
  6. I consider the Council’s failure to deal with Ms D’s challenge to the decision to stop paying direct payments as a review and simply subsume this into the complaints procedure amounts to fault. I consider this caused Ms D injustice as it denied her the right to have the matter considered under the specific arrangements for this and under a procedure that it is reasonable to assume would been concluded significantly more promptly than the complaints process.

Agreed action

  1. Within one month of the date of the final decision on this complaint the Council will:
    • apologise;
    • pay Ms D £300 to recognise the avoidable time and trouble she was caused in having to come to this office in order to have her complaint considered properly; and
    • pay Ms D a further £200 to recognise the avoidable inconvenience and frustration the excessive delay in considering the complaint under the statutory complaints procedure caused her.
  2. The Council will ensure it has adequate procedures and staffing in place to meet its statutory duty to investigate complaints made under the statutory children’s complaints procedure and meet the deadlines for this. The Council will provide us with evidence of how it will ensure it is in a position to do this within two months of the date of the final decision on this complaint.

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Final decision

  1. The Council was at fault in its handling of Ms D’s complaint and it will apologise and make the recommended payment to recognise the injustice this caused. I do not consider there is fault in the Council’s actions with regard to the rest of the complaint.

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Investigator's decision on behalf of the Ombudsman

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