Decision : Upheld
Decision date : 26 Nov 2021
The Ombudsman's final decision:
Summary: Mrs L complains about the actions of Kingston upon Hull City Council and NHS Hull Clinical Commissioning Group in relation to provision for her disabled sons M and N, during the COVID-19 pandemic. We find no fault in these actions. There was poor communication and fault in complaint handling which caused Mrs L time and trouble. The Council has agreed to make a payment to her to remedy this. The Council and CCG have agreed to review their complaint handling procedures.
- Mrs L complains about the actions of Kingston upon Hull City Council and NHS Hull Clinical Commissioning Group (“the CCG”) in relation to provision for her disabled sons M and N, during the COVID-19 pandemic. In particular she complains that the Council and CCG:
- Refused to allow her to use the direct payments and the personal health budget to employ her husband as her children's personal assistant, when they were shielding due to COVID-19, and stopped paying the joint family budget for six months.
- Failed to properly assess her children and gave her no opportunity to challenge the assessment. As a result the provision is inadequate and does not meet her children's needs.
- Took too long to decide whether they would provide play equipment, meaning her children lost out.
The Ombudsmen’s role and powers
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
- If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- The Ombudsmen cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant organisation has to make. Therefore, my investigation has focused on the way that the body made its decision.
- This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the body followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I spoke to Mrs L about her complaint and considered the information she sent, the Council and CCG’s responses to my enquiries, and:
- Working Together to Safeguard Children, Statutory Guidance, 2018.
- Personalised Care: Guidance on the legal rights to have personal health budgets and personal wheelchair budgets, NHS England and NHS Improvement, December 2019.
- Guidance on Direct Payments for Healthcare: Understanding the Regulations, NHS England, 2014 (“the PHB Guidance”).
- Using direct payments during the Coronavirus outbreak: Full Guidance for people receiving direct payments and personal assistants, Department of Health & Social Care, 21 April 2020.
- Coronavirus (COVID-19): Q&A for people receiving a personal budget or personal health budget, Department of Health & social Care, 21 April 2020.
- Getting the Best from Complaints – Social Care Complaints and Representations for Children, Young People and Others, Statutory Guidance, 2006.
What I found
Support for children in need
- Local authorities have a duty, under section 17 of the Children Act 1989, to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child’s needs. A disabled child is a child in need.
- Councils assess the needs of the child to determine which services to provide and what action to take. They have a duty to establish the child’s wishes and feelings and take account of them when planning the provision of services. Where the council decides to provide services, it should produce a multi-agency child in need plan to set out which organisations will provide which services.
- Under the Children and Families Act 2014, councils are required to jointly commission services for disabled children with partner bodies, such as the local NHS. NHS clinical commissioning groups have a legal responsibility to provide children and young people with a continuing care package if they have health needs arising from disability, accident or illness that cannot be met by existing universal or specialist health services alone.
- The Council and CCG therefore have a joint children and young people’s short breaks and continuing care panel (“the Panel”) to approve short breaks and services for disabled children.
- If a child or parent is unhappy with the Panel’s decision, they should contact the professional who undertook the assessment. If this does not achieve a resolution, they can contact the Chair of the Panel. If the matter is still not resolved, they can complain to the Council or CCG.
Personal budgets and direct payments
- A personal budget is the amount of money needed to meet an individual's care and support needs.
- The Children Act 1989 enables a personal budget to be given as direct payments. The family can use the direct payments flexibly to provide care and support for a child or young person. Direct payments can only be used to meet the needs set out in the child in need plan.
- The Care and Support (Direct Payments) Regulations 2014 say that a direct payment may not be used to pay a family member living in the same household, unless councils consider it is necessary to meet the child’s needs.
Personal health budgets
- A personal health budget (PHB) is an amount of money to support a person’s identified health and wellbeing needs. It is not new money, but money that would normally have been spent by the NHS on a person’s care being spent in a more flexible way to meet their identified needs. It can be provided as a direct payment.
- The PHB Guidance says a direct payment can only be used to pay an individual living in the same household if the CCG is satisfied that it is necessary to meet the person’s needs or to promote the welfare of a child. CCGs will decide this on a case-by-case basis.
Impact of COVID-19
- In March 2020, the Government introduced a national lockdown to reduce the spread of coronavirus. This required people to stay at home, with limited exceptions such as leaving the home to shop for food and medicine or to exercise. The Government advised people considered by the NHS to be at high risk (clinically extremely vulnerable) from COVID-19 to take extra steps to protect themselves. This was called shielding.
- Government guidance in April 2020 said personal assistants must wear personal protective equipment (PPE) if the person they were caring for or any member of the household was shielding, symptomatic or had a confirmed case of COVID-19. The council or CCG should help the family obtain the PPE.
- Further government guidance in April 2020 said councils and CCGs could use flexibility in considering the use of direct payments. For example, if a personal assistant needed to self-isolate a family member may provide care and councils and CCGs could consider whether to pay the family member from the direct payment. If a person considered it necessary for family members who live with them to become the paid care and support workers on a longer-term basis, this needed to be discussed and agreed with the council or CCG. Decisions would be made on a case-by-case basis.
Children’s statutory complaints procedures
- The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage two 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 two investigation, they can ask for a stage three review.
- Getting the best from complaints says where a complaint crosses over boundaries between a local authority and the NHS, the complaint can be made in its entirety to any one of the bodies involved. The local authority should establish which agency should deal with the complaint and ensure the complainant is kept informed and receives as comprehensive a reply as possible.
The Council’s corporate complaint procedure
- The Council has a three-stage corporate complaint procedure. At the final stage the Council convenes a member panel if:
- A Council policy has not been properly or fairly applied and this has not been corrected.
- The procedures operated by the Council are inadequate or inappropriate and reasonable improvements have not been made.
- There has been an operational failure which has not been resolved or is being repeated.
- The complaint highlights a serious situation or significant errors that need to be brought to the attention of members to get an independent view of what has happened.
- Mr and Mrs L have two sons, M and N, and a daughter, P. M has complex health needs and significant physical and learning disabilities; he requires two-to-one care. N is autistic and has significant language and social communication difficulties. They both receive direct payments to employ personal assistants to support them at home and in the community.
- Before March 2020 M received direct payments to fund 108 hours of support per week – 58 hours funded by the Council and 50 hours funded by the CCG. No extra hours were provided during school holidays. N received funding for 20 hours per week – 5 hours funded by the Council and 15 funded by the CCG. He also received funding for an extra seven hours per week during school holidays.
Review of M’s and N’s needs 2019-2020
- The Council and CCG started an annual review of M’s and N’s care needs in September 2019. The social worker and continuing care nurse made four joint home visits and one joint visit to N’s school between then and the end of February 2020. As part of the assessment, they completed a “247 grid”. This is a “day in the life” tool used in adult social care assessments to set out what support is needed and when, over a 24-hour period for each day of the week.
- The completed assessments said:
- M needed 93 hours of support per week for 52 weeks and an extra 812 hours for school holidays (total of 5,632 hours and 15 minutes per year).
- N needed 29 hours per week for 52 weeks and an extra 406 hours and 15 minutes for school holidays (total of 1,914 hours and 15 minutes per year).
- Mr and Mrs L should have four 24-hour short breaks each year.
Coronavirus lockdown and the direct payments
- The national lockdown then started. Mrs L emailed the Council to say that, as M was having to shield, the family had decided to limit all social contact. This meant they did not want the social worker or nurse to visit, nor for the personal assistants to care for M and N, other than to shop and provide meals.
- On 1 April Mrs L told the social worker that Mr L had decided to stop work and self-isolate for 12 weeks to support the family. This was to protect M, who was shielding, and himself as he had a health condition. Mr L would not be entitled to any wage or financial support for those 12 weeks. Mrs L was also unable to work. They had enquired about universal credit but this would affect their child tax credits.
- Mrs L asked the Council if they could use the existing direct payments to pay Mr L and their daughter, P, to be personal assistants to M and N. She said other areas were allowing this and the pandemic was an exceptional circumstance.
- The social worker sought advice from managers in the Council and CCG. The CCG said it could not use a PHB to pay a family member living in the same household. The Council had some flexibility to use a direct payment to do so if they considered it necessary.
- The Council has sent me a chronology which says the social worker called Mrs L on 14 May to advise that Mr L and P could not be paid from the direct payments. Mrs L asked for an explanation of this decision. She also advised that Mr L’s company was closing so he would be unemployed. He could not find another job as it would be too risky for M.
Request for equipment
- On 20 April, Mrs L asked the Council and CCG to purchase sensory play equipment including a climbing frame, an extra freezer and fencing to increase the height of their fence, as N was climbing on it and throwing things into the neighbour’s garden.
- The Council called Mrs L on 30 April to confirm the Council and CCG would jointly fund the sensory equipment. But the CCG had not agreed to purchase the fencing, freezer and climbing frame. Increasing the fencing above six feet would require planning permission. The CCG had suggested the possibility of hiring a climbing frame. Mrs L asked for more explanation of the decision.
- The Council called Mrs L on 14 May to advise the CCG had now agreed to fund the freezer. It had not approved the purchase of the climbing frame as there was no clinical recommendation for it.
Panel meeting 20 May 2020
- The Panel considered the requests for equipment and for paying the direct payments to Mr L and P. The Panel noted that due to COVID-19 it could make an exception to the usual policy of not using direct payments to pay family members who live in the same household. However, the personal assistants were available and had PPE. In line with Government guidance therefore, they could work in the home. The Panel considered that Mr L and P providing support may not be sustainable in the long term and that it would be best for Mrs L to use the personal assistants. It therefore did not agree to using the direct payments to pay Mr L. P had been helping Mrs L to support M and N and could be compensated for this as a young carer.
- The Panel also noted that only three of the four personal assistants had been recruited, meaning there was some funding which was not being used. Some of this had been used to purchase equipment. The Panel agreed that Mrs L could use the rest of the funding for the fourth personal assistant at her discretion. It also agreed to create a joint family budget. The child in need plans were then finalised.
Mrs L’s complaint
- It is unclear to me when Mrs L was told the Panel’s decision. The Council has indicated it was on 15 May, but this was before the Panel had met and I have seen no evidence of a Panel decision being sent in writing. Nonetheless, by 8 June Mrs L was aware and emailed the Council with her concerns. She asked why M’s weekly hours had been reduced from 108 to 93, why they had not been allowed to use the direct payments to pay Mr L, and why the CCG had refused to purchase the sensory play equipment.
- Mrs L chose not to accept the joint family budget as she disagreed with the outcome of the assessment of M’s needs. She therefore chose to keep M’s PHB and Council direct payments separate from October 2019 to October 2020. A jointly funded health and social care PHB was created for N from May 2020 to May 2021.
- The Council replied to Mrs L’s email on 23 June 2020. It said:
- M would receive an extra 812 hours for school holidays, so the number of hours of support per year was increasing from 5,616 to 5,632.
- PHBs could not be used to pay a family member living in the same household. Mr L’s financial support as a carer should come through carers benefits.
- The purchase of sensory equipment and a freezer had been agreed. A request for play equipment would require a clinical recommendation, and occupational therapy and risk assessments, which would take time. Seeking planning permission for the taller fencing would be a lengthy process.
- Decisions about the number of hours of support M and N needed were taken following assessments.
- Mrs L had chosen not to use the personal assistants who were available and PHBs could not be used to pay members of the same household.
- There was no specific training for assessing for a personal budget or for the 247 grid, but the social worker and nurse were fully trained to assess needs.
- The Council apologised it had not sent a written decision on the equipment.
The stage two complaint investigation
- The Council decided that Mrs L’s complaint should be investigated by an independent senior manager, but it could not identify a suitable officer. It therefore decided to appoint an external investigating officer. It assigned the complaint to the investigating officer on 5 October.
- The Council sent Mrs L the investigating officer’s findings on 24 December 2020. He had found the Panel had considered the merits of Mrs L’s case, while trying to ensure the process was fair to all families. However, correspondence with Mrs L about the Panel’s decisions had lacked detail and she had not been able to challenge the outcome of the assessments at the Panel. This was because the Panel’s procedures did not allow for this. He therefore recommended Council and CCG managers met Mrs L to discuss the issues. In relation to equipment, the investigator noted that assessing for this would take time.
The request to go to stage three of the complaint procedure
- Mrs L was dissatisfied with the outcome of the stage two investigation and asked the Council to escalate her complaint to a review by a panel of members.
- The Council refused this request on 15 February 2021. It said the members panel was unable to overturn the Panel’s decision, therefore it could not consider the direct payment issues. Mrs L came to the Ombudsmen.
Events following Mrs L’s complaint
- An occupational therapy assessment in October 2020 and risk assessments in January 2021 led to funding being agreed to purchase a jump and play island and crash pit in January 2021.
- M’s health and social care needs were jointly assessed in March 2021 and a joint health and social care funded budget created, commencing April 2021 to April 2022. N’s joint PHB was also reassessed in May 2021 and a new budget created. Mr and Mrs L have asked for the package of support to be increased.
- I have considered each part of Mrs L’s complaint separately below.
Decision not to allow direct payments to be paid to Mr L
- Mrs L asked the Council to allow Mr L to be paid on 1 April 2020 as she had seen that the Government’s guidance was changing to allow this flexibility. The new guidance was published on 21 April. I have seen evidence there were internal discussions at the Council and CCG about whether this would be possible and reference was made to the new guidance. The CCG position appeared to be that it was not able to use PHBs in this way, which is not strictly correct as CCGs have discretion to do so even without the COVID-19 guidance encouraging flexibility.
- The social worker called Mrs L on 14 May to say Mr L and P could not be paid with the direct payments. It is unclear whether she explained that the Panel would be making a formal decision the following week.
- The Panel considered the request on 20 May. It decided not to allow the direct payments to be paid to Mr L. This was because it considered Mrs L could and should use the personal assistants to care for M and N.
- I appreciate Mrs L has been given various other reasons for this decision in correspondence, such as Mr L being able to apply for benefits, there being a conflict of interest in paying a family member, and that it was not possible to use PHBs to pay a family member living in the same household. I can see how this would lead her to doubt that the decision had been taken properly. It is likely that the lack of clarity was caused as the Panel minutes were not able to be as detailed as normal due to the increase in the Panel’s workload caused by the pandemic.
- There was also some confusion about payments to P. Mrs L queried why the direct payments were allowed to be paid to P but not Mr L. In fact, the Panel had decided P could be paid by a young carer’s grant.
- I consider this lack of clarity was compounded by there being no formal written decision. The Panel’s terms of reference say only that “the family should be informed”, so the Council or CCG were not required to write to Mrs L. Nonetheless, I consider it would have been good practice to do so.
- I also find the Panel’s appeal process was not properly followed. The terms of reference say if a parent is unhappy, they can make a representation to the Panel Chair. This did not happen, which is fault. But a Council senior manager who was a member of the Panel did respond to the concerns Mrs L raised on 8 June, so I do not find any injustice was caused.
- Mrs L says the Panel’s decision was wrong because the government guidance on COVID-19 said direct payments could be made to family members. I can see that this would have been a practical solution for the family, as they did not want the personal assistants to care for M and N. However, the guidance says only that the Council and CCG had to consider the request and decide whether to allow this flexibility. The Panel was therefore entitled to refuse the request.
- We cannot question whether a decision is right or wrong simply because the complainant disagrees with it and I cannot substitute my view for a properly made decision by the Panel. So I must consider whether there was fault in the way the decision was reached. Although there were unclear communications with Mrs L after the decision was made, I have seen no evidence of fault in the way the Panel decided not to allow her to use the direct payments to pay her husband. In reaching its decision it considered the assessments, the role of the personal assistants and the COVID-19 guidance. It was a decision the Council and CCG were entitled to make and without fault I cannot challenge it.
- Mrs L said the PHBs had not been paid for six months. I asked about this but the Council said no payments had been re-claimed and I have seen no evidence they were not paid. I therefore have no evidence of fault.
Assessments of M’s and N’s needs
- The Ombudsmen cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant organisation has to make.
- Our role is to consider if the Council and CCG have followed the correct process for establishing a person's needs and if they acted correctly when this process was complete. In doing so we look at what information they considered, and if they took account of the service user’s and carer’s wishes. If they consider all this information properly the Ombudsmen cannot find fault just because a person disagrees with the outcome of an assessment.
- I have reviewed the assessments and the 247 grid. They are based on four home visits and a visit to N’s school. They are detailed and describe M’s and N’s needs and how these can be met. M and N were seen and Mrs L was involved in the process. The assessments acknowledge that that there are other children with needs in the family and discuss the support Mr and Mrs L can give. They note short breaks will be requested for the parents. Mrs L says the 247 grids contain gaps, but that is not evidence of administrative fault. Mrs L says the social worker and nurse were not trained to complete them, but there was no specific training. I have no reason to consider the social worker and nurse were not competent to assess and determine needs. There is no evidence of fault in the way the assessments were carried out.
- The resulting child in need plans reflect the needs and set out who will meet them. The report to the panel of 18 March 2020 describes the number of hours of support that M and N were assessed to require and the short breaks hours. These were then approved after the Panel considered all the information and spoke to the social worker and nurse. Mrs L disagreed with the hours for M and the short breaks, but without evidence of fault in the process I cannot challenge the Panel’s decision.
Was there delay in deciding on the request for equipment?
- Mrs L asked for the equipment on 20 April 2020. She was told over the phone on 30 April that sensory equipment had been approved but the climbing frame and freezer had been refused. She asked why and there was another discussion with her on 14 May 2020. The Panel considered the request on 20 May and Mrs L was aware the climbing frame had been refused by 8 June, although a decision had not been sent in writing.
- There is therefore no evidence of drift or delay in the decision making. The Council’s letter of 23 June apologised a written decision had not been sent sooner, but the decision had been taken on 20 May and I do not find delay.
- However, I find the communications with Mrs L were unclear. Some of the correspondence implies that the climbing frame was refused as it would take too long to assess for. This cannot be right as if a child required a climbing frame to meet their needs, it would need to be provided no matter how long an assessment took. Similarly, the taller fencing appeared to have been refused on the grounds that planning permission would be needed.
- Mrs L was told the CCG had refused to purchase the climbing frame, but this was not strictly correct. The CCG was unable to approve the request as there had been no clinical recommendation following an assessment and no OT and risk assessment. No assessments could be done as the family were shielding and did not want visitors. I note that once these assessments were done play equipment was provided.
- The Panel should have written to Mrs L after 20 May to explain it would decide on the climbing frame request following an assessment, but that it was not possible to assess at that time due to the family shielding. This would have given Mrs L an opportunity to weigh up the risks of allowing an assessment against the need for the climbing frame. However, I consider it more likely than not that, even if it had been more clearly explained to Mrs L, she would not have allowed the assessment due to the risks of COVID-19. I therefore do not consider any injustice was caused by the poor communication.
- The Council says it considered whether to deal with Mrs L’s complaint under the children’s statutory complaint procedure but decided not to as the complaint related to the decision making of the Panel and the use of direct payments.
- The statutory complaints procedure is for complaints about all functions of the Council under part 3 of the Children Act 1989. This includes s17, the provision of services for children in need. The direct payments for M and N were being paid under s17. The guidance allows the statutory procedure to be used if there is joint council and NHS decision making.
- It was therefore fault to not use using the children’s statutory complaint procedure. The injustice caused by this is mitigated as the Council appointed an independent investigator. However, it had not done that before for its corporate complaint process, so there was a delay in finding someone suitable.
- If the Council had followed the statutory procedure, stage two should have been completed 65 working days from Mrs L’s complaint of 29 June 2020, i.e. by the end of September. The stage two response was sent on 24 December. The Council then refused to escalate to its member panel, but stage three would have been allowed under the statutory procedure. I therefore find that the fault has caused delay and time and trouble to Mrs L as she has had to pursue her complaint through the Ombudsmen.
- When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we may ask for a symbolic payment to acknowledge the avoidable distress caused. The Ombudsmen’s guidance on remedies suggest a payment for time and trouble caused by fault in complaint handling to be a moderate amount of £100 to £300.
- Within a month of my final decision, the Council has agreed to apologise to Mrs L and pay her £200 to acknowledge the time and trouble she was caused due to fault in complaint handling.
- Within three months of my final decision, the Council and CCG have agreed to develop a protocol for handling complaints about joint-commissioned services between social care and health.
- There was fault causing injustice. The actions the Council and CCG have agreed to take remedy the injustice caused. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman