Unacceptable delay:

Complaints procedures for disabled children and their families

The Cerebra Legal Entitlements and Problem-Solving (LEaP) Research Project at Leeds University has published a report concerning serious (and systemic) failings in the way that a number of English councils investigate children’s social service complaints.

Key findings included:

  1. The current complaints’ regime rewards councils that maintain dysfunctional systems, as the penalties for poor behaviour are either minimal or non-existent.
  2. Central Government and the ombudsman’s guidance fail to give emphasis to the fact that delay, when it impacts on the life of a child, is to be treated as damaging and requiring a special response.
  3. The current complaints system discriminates against children and families with low incomes and / or poor support networks.
  4. In over 60% of the cases where the ombudsman found fault with the council’s complaint handling his office remitted the complaint back to the council without a recommendation for compensation for the delay – despite the average time (from the initial complaint to the ombudsman’s report) being 345 days. In the remainder of cases, where compensation was recommended, the average time amounted to 572 days and the average compensation was 30p per day.

Recommendations include:

  • The relevant guidance should formally recognise that delay in relation to children’s services complaints is a substantive harm, for which there is a presumption that appropriate compensation should be paid.
  • The Secretary of State should demonstrate a willingness to use his default powers to require recalcitrant authorities to exercise their functions in a way that complies with the law.

The full report (including a Summary) can be accessed by clicking here.

 

Anniversary quotes

Two quotes: one published a year ago and the other 175 years ago.

14 million people, a fifth of the population, live in poverty. Four million of these are more than 50% below the poverty line and 1.5 million are destitute, unable to afford basic essentials. The widely respected Institute for Fiscal Studies predicts a 7% rise in child poverty between 2015 and 2022, and various sources predict child poverty rates of as high as 40%. For almost one in every two children to be poor in twenty-first century Britain is not just a disgrace, but a social calamity and an economic disaster, all rolled into one.

(Statement on Visit to the United Kingdom, by Professor Philip Alston, London, 16 November 2018)

Two nations between whom there is no intercourse and no sympathy; who are as ignorant of each other’s habits, thoughts, and feelings, as if they were dwellers in different zones, or inhabitants of different planets. The rich and the poor.

(Benjamin Disraeli Sybil, or The Two Nations 1845)

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Two quotes – one a decade after the Poor Law Amendment Act 1834 formalised the misery of workhouses: the ‘most sustained attempt to impose ideological dogma, in defiance of the evidence of human need’ (to quote EP Thompson[1]) and the other a decade after the introduction of (to quote Theresia Degener[2]) the ‘human catastrophe’ of austerity economics.

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[1]    E P Thompson, The Making of the English Working Class, Penguin, 1991, p295.
[2] Professor Theresia Degener, former Chair of the United Nations Committee on the Rights of Persons with Disabilities and Professor of Law and Disability Studies (Protestant University of Applied Sciences, RWL, Germany).

Unfortunately … there is no legal footing to justify us not funding

 

R (CP) v. NE Lincolnshire Council[1] is an important Court of Appeal decision.  On one level the judgment demonstrates the complexity of the care / education arrangements for young people moving into adulthood – and on another it makes the simple point that councils must meet the needs of disabled people.

The case concerned a young adult described in the following terms (para 3):

CP is a 22-year old woman with global development delay, learning difficulties and an autistic spectrum disorder. She does not communicate verbally. She can communicate to an extent by behaviour, gesture and vocalisation. She cannot be left alone at any time, is doubly incontinent and requires assistance with washing and dressing. Her behavioural difficulties can make her challenging. She wakes every night and requires a carer to be with her. She uses a wheelchair when in the community. She lives with her parents in Lincolnshire

The judgment describes the family having to battle at every stage to get an EHC Plan for their daughter post-16 and for the education, health and social care elements. It is stark evidence – if evidence is needed – as to the enormous barriers families experience (not least due to the legal complexities) and of the way councils approach claims of this kind. At para 27 the judgment refers to an email the council sent to relevant staff saying “Unfortunately it transpires that there is no legal footing to justify us not funding this provision”. Lord Justice Haddon-Cave, in his judgment, put this in context, observing (para 67) that the Council resisted the claim ‘at every turn and conducted what turned out to be a fruitless rear-guard action’.

By the time of the Court of Appeal hearing, council funding had been secured for the young adult’s needs and the essential question was whether it should repay her family for the costs of past support (ie prior to the council agreement to fund). The support throughout the relevant period had been at a centre run by a charity which had been set up and was organised by her father.

The court held (para 74) that the centre met both the young adult’s educational and social care needs – noting that ‘the fact that a provision is “education and training” under s.21 of the CFA 2014 does not mean that it cannot also provide an element of social care; and vice-versa. The two matters are complimentary, not mutually exclusive.’

It rejected (at para 85) as ‘misconceived’ and ‘as having no basis’ the council’s claim that the father was the ‘real claimant’ by alleging that he was in effect that he was ‘using the proceedings inappropriately to profit from the claim’ since [the centre) was a charity organised and controlled by him.

From a legal perspective, a particularly welcome finding of the court concerns the council’s argument that the applicant could not recover the sums unpaid because a ‘breach of a public law duty did not give rise to private law rights’. The court rejected this as ‘specious’. What was being asserted were not ‘private law rights’ but like ‘other social security and benefit claimants, she is simply asserting an orthodox public law right to be paid monies due to her under the Care Act 2014 and which the Council has unlawfully failed or refused to pay’.

For good measure the judgment also stated in forceful terms (para 82):

A breach of a statutory duty is a breach of statutory duty. It is, by definition, unlawful conduct. Unlawful conduct by a public body cannot merely be discounted or ignored. Moreover, s. 26 is no minor matter. A local authority’s statutory duty under s. 26 of the Care Act 2014 to provide a personal budget to meet a person’s care and support needs is fundamental to the operation of the care and support scheme which the Care Act 2014 underpins.

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[1] R (CP) v. NE Lincolnshire Council [2019] EWCA Civ 1614 accessible at https://www.bailii.org/ew/cases/EWCA/Civ/2019/1614.html.
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‘Waiting for her to die’

Perceptions of a terminally ill woman who was denied an integrated assessment and services

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The Public Services Ombudsman for Wales (PSOW) has published a troubling report[1] concerning a systems failure by a Welsh Council.  The complainant (Mrs X) was discharged from hospital: she was terminally ill with a diagnosis of advanced heart failure.  She contacted her council by telephone and asked to be assessed for a package of social care support: for a few mornings a week including showering.  She was told that the Council did not provide this service and sent a list of private care providers.  She continued to say how unwell she felt and was advised to see her GP.  The referral was closed with no further action to be taken by the Council

With support she contacted a number of private providers but was unable to afford their services.  Two weeks later her advocate contacted the council and it recorded that she was terminally ill (end stage heart failure with 10% function of her heart) and needed 45 minutes of support with morning personal care tasks and food preparation.  She was referred to the council’s reablement unit for an assessment but this service had no spare capacity and so none was undertaken.  A month later the council offered to refer her to domiciliary care – but by this time her family were supporting her and she was very ill.

A formal complaint was made by the advocate, concerning the failure to assess, the failure to provide support, the failure give proper consideration to her personal circumstances, and in due course the council’s failure to handle the complaints process (from complaint to final report took six months).

All complaints were upheld. The ombudsman’s officer’s report notes that the complainant (para 64):

was left feeling that the Council was waiting for her to die so that it did not have to address her complaint. It is also perhaps the clearest indication that the Council did not take into account Mrs X’s personal circumstances, particularly her terminal diagnosis. 

 

The PSOW held that the complaint engaged Article 8 of the European Convention on Human Rights (para 59):

as the council’s failures were intrinsically linked to Mrs X being able to live her life, and continue to do so, as independently as possible and for as long as possible. Not dealing with Mrs X’s assessment with the urgency it required means that the Council, in my view, did not fully consider Mrs X’s dignity in this regard.

 

The PSOW recommended (among other things) that within 6 months (para 66):

the Council commissions training for the First Contact Team on how to ask probing questions during the “What Matters Conversation” designed to tease out crucial information including current diagnoses and prognoses. The training should also remind the First Contact Team that there are cases where a health need and a social care need interlink and that a person with a health need may still require social care assistance.

This report is particularly concerning as it highlights the serious failure of the statutory system of assessment and provision.  In this case the system’s initial response was to deny that support was available.  It then made a referral to a reablement unit that was not taking new work.  If this is the way the system responds to a woman with a terminal diagnosis, one has to ask – “how many other people has it failed?”

The Pembrokeshire PSOW report and the previous assessment and care planning reports that have been made available on the Rhydian: Social Welfare Law in Wales news page,[2] are a salutary reminder that the assessment and the management of care and support under the Social Services and Wellbeing (Wales) Act 2014 continues to fail, at least some people in need of care and support. For every person failed the impact is life changing.

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[1] A report by the Public Services Ombudsman for Wales concerning Pembrokeshire County Council Case:  201806802 8 November 2019.
[2] See Gwynedd County Council   (2016); Gwynedd County Council (2018); and Anglesey County Council (2019).

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Photograph of ‘Mynydd Grug’ (Heather Mountain) by Richard Jones -@lluniaurich

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Under 5’s school transport

An excellent report[1] from the ombudsman concerning the legal obligations on a council to provide transport for a disabled child below statutory school age.

The report provides a helpful statement of the law and the requirements of the relevant statutory guidance.  In the case considered by the ombudsman, the council had misunderstood the law, misunderstood the facts and misunderstood the minimum requirements for a lawful appeals process.  Although by the time the ombudsman prepared his report, the council had adopted a revised policy – this policy was almost certainly unlawful for the purposes of the Equality Act 2010 and amounted to a ‘fettering’ of its discretion.

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[1] Complaint no 18 017 909 against Herefordshire Council,  24 July 2019.

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Education Committee Report on SEND

The House of Commons Education Committee published its report on ‘Special educational needs and disabilities’ on 23rd October 2019. It doesn’t pull its punches and we must all hope that we have a Government that is prepared to take action to implement the Committee’s recommendations.

For the full report – click here.

The ‘Summary’ to the report reads as follows:

The reforms were ambitious: the Children and Families Bill sought to place young people at the heart of the system. However, as we set out in this report, that ambition remains to be realised. Let down by failures of implementation, the 2014 reforms have resulted in confusion and at times unlawful practice, bureaucratic nightmares, buck-passing and a lack of accountability, strained resources and adversarial experiences, and ultimately dashed the hopes of many.

The reforms were the right ones. But their implementation has been badly hampered by poor administration and a challenging funding environment in which local authorities and schools have lacked the ability to make transformative change. The Government has recently taken initial steps to rectify the latter of these two challenges, but there is much left to be done.

There is too much of a tension between the child’s needs and the provision available. The significant funding shortfall is a serious contributory factor to the failure on the part of all involved to deliver on the SEND reforms and meet children’s needs. Ultimately, however, unless we see a culture change, within schools and local authorities and the Government, any additional money will be wasted and make little difference to their lives.

We have found a general lack of accountability within the system. We do not think that the current approach to accountability is sufficient—the absence of a rigorous inspection regime at the beginning set the tone of a hands-off approach. This has been perpetuated by the fact that those required, or enabled, to ‘police’ the system have been limited in part by an apparent unwillingness to grapple with unlawful practice, while others are limited by the narrowness of their remit.

There must be greater oversight—we want to see a more rigorous inspection framework with clear consequences for failure…. 

Parents and carers have to wade through a treacle of bureaucracy, full of conflict, missed appointments and despair…

We heard that many of the eagerly anticipated initiatives are not living up to their ambition and name. The role of health providers is pivotal, but unsurprisingly, the meshing of two systems has not worked. Unless health, and social care are ‘at the table’, we are no further on, and the Education, Health and Care Plan is no more than a Statement by another name. In a similar vein, we want to see greater joint working between the health and education sectors, beginning firmly with the development of a joint outcomes framework to measure how the health aspects of support for children and young people with SEND are being delivered locally. But ultimate responsibility for this monitoring should sit with government, not an inspectorate.

We are seeing serious gaps in therapy provision. We need to see professionals trained and supported so that they are able to support all pupils; these huge gaps in therapy provision across the country are letting down all pupils, but particularly those on SEN Support. We need to know where the gaps are, because children are falling through them, and what is going to be done about it.

Similarly, the local offer’s aims and intentions appear to have moved away from the initial intentions, and in some cases have become unusable and useless, and we call on the Government to review local authorities’ local offers in collaboration with children, young people and their parents and carers.

Special educational needs and disabilities must be seen as part of the whole approach of the Department’s remit, not just an add-on. The Department for Education has an approach which is piecemeal, creating reactive, sticking-plaster policies, when what is needed is serious effort to ensure that issues are fully grappled with, and the 2014 Act works properly, as was intended.

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Unpaid carers in Wales

Carers Wales has published its annual ‘Track the Act’ report (for the year to April 2019) based on a survey of 562 carers (from every part of Wales) plus Freedom Information Requests to each of Wales’ 22 local authorities.   Carers Wales is to be congratulated once more – for providing an independent analysis as to the state of social care in Wales.

The report notes that there are 370,000 carers in Wales who provide, unpaid, 96% of all care delivered – saving the Welsh economy £8.1 billion a year. The report adds:

It would be a false economy not to invest and plan services to meet carers needs and support them to look after their own health and well-being.

However throughout Wales (as in England) many carer support groups are having their funding cut or withdrawn completely. In the long term these cuts are going to be shown to be very expensive indeed – as more and more families are stretched to their limits and cease to be able to cope.

The voice of carers comes through the report – noting (for example) that ‘many carers have told us that things have in fact worsened over the last few years’ – and the report includes many telling quotes:

I phoned the local authority asking for help for my son and was told that there was no help for him and I have to seek out my own support.

My health and well-being has deteriorated and I worry about what I will do if I have to give up my part-time job.

Some key statistics

  • In the last year fewer carers reported getting information about the support that might be available to help them (45% compared to 53% in the previous year);
  • Of those carers’ who have had an assessment, over 50% were not asked about their work situation and only 40% had a discussion about emergency planning;
  • 85% of carers who responded said that they had not had an assessment in the last twelve months, with 70% saying they had not had an assessment since the Act’s implementation (in 2016). As Carers Wales notes ‘Given that 61% of carers who responded to the survey said they were caring for over 50 hours a week and 69% said they had been caring for over five years, we find this figure worrying.’

Some of the local authority data responses are a little troubling. Cardiff City (the largest local authority in Wales) with 35,005 carers appears to have provided support to just 3 carers whereas Merthyr, the smallest authority with 7,427 carers, appears to have supported 114.

Swansea appears to have provided support for 30,788 carers – which is not only more carers than there are in Swansea (and more than 10 times the number it assessed) it is also four times as many as the combined total for all other reporting councils (the total for these 18 councils amounted to 6,937).   Either we have misunderstood the data (Carers Wales advise us that these are the figures it was given by councils) or one has to question the official data, on which presumably the Welsh Government also places some reliance?

To access the full report click here.

Photograph of ‘Hydref cynnar Llanfaglan’ by Richard Jones -@lluniaurich

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