Post-19 education transport costs

In a recent and important report,[1] the ombudsman has held that the transport needs of an adult in education are relevant considerations when assessing his (and his carer’s) social care needs. Citing the Statutory Guidance to the Care Act 2014 (para 16.22) he noted that local authorities should consider the importance of full-time programmes for young people aged 16 and over to ‘allow parents to remain in employment full time’.

The ombudsman also held that the council’s transport policy for adults was unlawful. The report is impressive in setting out with considerable clarity the relevant education and social care law, namely:

  1. Section 508F of the Education Act 1996 requires local authorities to make transport arrangements they consider “necessary” (or that the Secretary of State directs) to facilitate the attendance of relevant young adults at institutions where the local authority has secured the provision of education for the adult concerned. Relevant young adult means an adult who is under 25 years old for whom an EHC plan is maintained.[2]
  2. When a council finds it is “necessary” to provide transport for the young adult under section 508F, then the transport must be free of charge.[3]
  3. If a local authority does not consider it “necessary” to provide transport under section 508F it may still choose to pay some or all of the reasonable travel costs under section 508F(8) or as social care provision under the Care Act.

As the report makes clear, from the outset, the Council made it difficult for the parent to apply for transport funding for her adult son. All manner of devices to were deployed to deflect the claim – for example: by not providing an application form; by stating that her request for help was not a ‘formal application for funding’; by not admitting to any appeals process; by misstating what the law required; and by asking her for details of her income (which was irrelevant as her son was an adult).

The council’s policy was that ‘save for exceptional circumstances’ it would not provide post-19 transport funding – and that it was the parent’s responsibility to arrange transport for her son.   As the ombudsman’s report noted (at para 104):

The law says that if the Council considers it is necessary for an adult who is over 19 to have transport provision then this must be provided. It does not say that it will only do so if there are exceptional or special circumstances, which is what the Council’s policy currently says. The language the Council uses in its policy gives the impression a person’s circumstances must be such that he/she not only ‘needs’ assistance, but their circumstances are exceptional, which indicates they must be different to other people who have similar needs. That is not what the law says. This is fault.

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[1] Complaint no 17 017 296 against Birmingham City Council, 3 April 2019.
[2] The Children and Families Act 2014, section 82.
[3] Education Act 1996 section 508F(4).

Charging for social care changes

The Welsh Government has made uprating changes to the social care charging rules – which have now taken effect. The head-line changes are increases to:

  • the maximum non-residential care charge to £90 per week;
  • the residential care capital limit to £50,000; and
  • to the residential care personal expense allowance to £29.50 per week.
The Part 4 and 5 Code of Practice (Charging and Financial Assessment) has also been updated (to reflect the amended regulations). For further details click here.

 

Photograph of ‘Caenarfon Castle’ by Richard Jones -@lluniaurich
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Legal Aid closure

At the end of 2018 the BBC reported on the decimation of legal aid – with Wales a prime example.  TA Law of Swansea has now announced its withdrawal from legal aid.  It appears there may now only be two firms authorised to provide community care legal aid in the whole of Wales.

Measuring the Mountain

A Welsh Government funded research report into ‘What Really Matters in Social Care to Individuals in Wales’ can be accessed by clicking here. It contains some interesting material and a pie diagram (page 58) that suggests that the impact of the 2014 has not been ‘transformative’.

NHS Continuing Healthcare (CHC) and transitions into adulthood

Young people who are receiving NHS Continuing Care (and their families) are inevitably anxious to know what their care and support arrangements will be once they become 18.  Not infrequently there will be concern about losing a suitable placement because of uncertainty about eligibility for adult NHS CHC funding.  In some cases it appears that families are told that nothing can be agreed until the young person becomes 18.  This is wrong.

The 2018 Adult Framework (paras 331-349) and the [truly dreadful] 2016 Children and Young People’s Framework (paras 116-117) contain clear guidance as to what should happen with transitions of this kind.

Para 341 of the 2018 Adult Framework states (for example) that as soon as practicable after the 17th birthday, eligibility for adult NHS CHC should be determined in principle by the relevant CCG, so that, wherever applicable, effective packages of care can be commissioned in time for the individual’s 18th birthday.

The 2016 Children and Young People’s Framework provides guidance on the process by which the healthcare services young people are receiving, continue as the move into adulthood.[1]  It advises that future entitlement to adult NHS CHC ‘should be clarified as early as possible in the transition planning process, especially if the young person’s needs are likely to remain at a similar level until adulthood’ and this should be done ‘at a suitable point when aged 16-17’ (para 116).  At para 117 it then provides a three stage process that should be followed:

  • At 14 years of age, the young person should be brought to the attention of the CCG as likely to need an assessment for NHS Continuing Healthcare.
  • At 16 -17 years of age, screening for NHS Continuing Healthcare should be undertaken using the adult screening tool, and an agreement in principle that the young person has a primary health need, and is therefore likely to need NHS Continuing Healthcare .
  • At 18 years of age, full transition to adult NHS Continuing Healthcare or to universal and specialist health services should have been made, except in instances where this is not appropriate.

Importantly it advises that when the young person is 16 eligibility for NHS CHC should be determined in principle ‘so that, wherever applicable, effective packages of care can be commissioned in time’ for their 18th birthday (or later, if it is agreed that it is more appropriate for responsibility to be transferred then)’ (para 120).

Although the NHS Clinical Commissioning Group (CCG) responsible for ensuring these transitional arrangements occur will generally be the one for which the young person’s GP is a member, 2012 NHS regulations[2] stipulate that this will not be the case if the young person is in accommodation commissioned by another CCG (alone or jointly with a local authority).

It follows that in every case the CCG should determine – well before the 18th birthday – whether the young person is, in principle, eligible so that effective packages of care can be commissioned in time for the 18th birthday. If a social services authority is contributing to the package of care, then there is a duty on it to undertake a transitional assessment – and the process is explained in the ‘Disabled Children: A Legal Handbook[3] at para 10.22.

Social care legislation provides for a relatively sophisticated transitional planning scheme (eg Care Act 2014 ss 58 – 59 and Children Act 1989 s17ZH).  Although this level of detail is lacking for the NHS – as a matter of ‘public law’ CCGs must have internal arrangements (and inter-authority arrangements) that ensure that the young person continues to have appropriate care when they become 18 and that they and their family do not have to endure uncertainty / anxiety in the years leading up to the 18th birthday.  If there is uncertainty as to whether the person will be eligible for NHS CHC funding when 18, then the CCG and social services should agree on what would be an appropriate package – even if they are unable to agree who should fund it.  The law requires in such cases that one of them then ‘grasps the nettle’ and secures the support, before (if necessary) entering into protracted negotiations with the other on liability for the care costs.[4]  If there is delay or a failure to act, then a joint complaint should be made.  This can be done using the precedent letter 2 of the Cerebra Accessing Public Services Toolkit page 30.[5]

A 2013 ombudsman’s complaint[6] concerned a young man in ‘transition’.  He was due to be 18 in November 2011 but the NHS transition process only started in April 2010 when he was 16.  Given the complexity of the young man’s needs, the Ombudsman considered that this was too short a period and to amount to maladministration.

Of course in any transition there will also need to be an updated parent carer assessment – both under Children Act 1989 s17ZD and under the transitional arrangements – for which see ‘Disabled Children: A Legal Handbook[7] at para 10.38.

For an earlier ‘post’ about the general approach to be taken in relation to transitions – click here.

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[1] DDCSF & DH Guidance (2008) Transition: moving on well – A good practice guide. DCSF and DH (2007) A transition guide for all services: key information for professionals about the transition process for disabled young people and see also Department for Education Special educational needs and disability code of practice: 0 to 25 years (2014) para 8.56.
[2] The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 SI 2996 reg 5.
[3] Accessible at https://councilfordisabledchildren.org.uk/help-resources/resources/disabled-children-legal-handbook-2nd-edition.
[4] See for example complaint no 96/C/3868 against Calderdale MBC, 24 November 1998 para 30
[5] Accessible at https://www.cerebra.org.uk/help-and-information/guides-for-parents/problem-solving-toolkit/
[6] Public Services Ombudsman for Wales Report on complaint No. 201201350 against Aneurin Bevan Health Board, 30th April 2013.
[7] Accessible at https://councilfordisabledchildren.org.uk/help-resources/resources/disabled-children-legal-handbook-2nd-edition.

Parents accused of inventing children’s illnesses

For an earlier ‘post’ concerned families being wrongly accused of fabricating or exaggerating their disabled child’s needs – see ‘Can you cope’. A follow up, and equally disturbing, report has been covered by Radio 5 Live as ‘Parents accused of inventing children’s illnesses’. For a link to the BBC article on this click here and to listen to the programme click here.