So what do you do?

You are a health / social care professional. You have read up on the lawfulness of funding panels – but you now find yourself required to attend a panel to agree funding on a large package for someone with a substantial need for care and support. The panel has some esoteric title – but it is really a ‘rationing’ panel. Cases are often delayed (often sent back for more information) and care packages generally reduced (never increased).

You have in the past raised issues about risk and questions about urgency however these have been stonewalled. This causes you significant personal and professional concern – not least the risk posed to the persons in need, who are being left in dangerous unmanaged circumstances. Not only are people who don’t have first hand knowledge of the individual’s circumstances questioning / disputing packages of care you consider necessary, but they are also questioning your assessment and leaving you holding the risk.

 

What should you do?

It’s a difficult situation. You are working within an organisation that does not appear to be acting in a reasonable or, indeed, in a lawful way. Clearly the people you are assessing (and for whom you are care planning) are able to complain – but you know full well all the reasons why they are unlikely to do this. You could point them in the direction of an advice agency – but that could put you in an invidious position and there is a considerable shortage of support of this kind.

What do you do if senior officers are actively challenging you – when all you are doing is trying to follow your judgment and the law? In the case of a complaint’s investigator who considered she was being bullied – she contacted the ombudsman – without success (see ‘Omg … will it never end’).

This website focuses on the rights of disabled people, carers and their families, but it is patently obvious that day in day out countless front line workers in many (but not all) local authorities and the NHS face these challenges. It would be good if someone was able to write a piece explaining what can be done. This is a subject that the School of Law at Leeds Univeristy (Cerebra LEaP project) hopes to research but pending this it would be valuable to have ideas about what can be done. It may have to be an ‘authors name withheld’ piece, for all the predictable reasons.

Suggestions – in confidence – would be welcome.

Photograph of ‘Llanfaglan’ by Richard Jones -@lluniaurich

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Post-16 students and free school / college travel assistance

A further ombudsman’s report concerning the duty to provide free travel assistance to school / colleges etc has just been published.[1]

A March 2019 ombudsman’s report[2] concerning the same Council held that its post-16 transport policy was unlawful – not least because it suggested that support of this kind was only ‘discretionary’.

The Council’s criteria stated that a person ‘may be eligible’ for free education transport if they satisfied seven criteria, namely:

  1. The young person is under 25 years of age and they reside or are Looked After by the council;
  2. They have a special educational need or disability, which may be identified in an Education Health and Care Plan (EHCP), or other exceptional circumstances which impacts on their ability to use those public transport arrangements;
  3. The young person lives more than 3 miles away from their learning venue (by the shortest safe walking route), or they live less than 3 miles away;
  4. They have exhausted all available sources of support … ;[3]
  5. Their learning venue is the nearest that can meet the majority of their needs;
  6. Their study programme is full-time – equivalent to a minimum of 18 hours per week;
  7. If the young person is aged 19 or over, they have been in continuous education or training since before their 19 birthday. Unless they have an EHC plan issued.

As with many such policies (it appears) Councils seem to suggest that the provision of transport for post-16 students is simply a ‘discretion’.  This is wrong.  There is a duty to provide support from some students and even for students who don’t have a ‘right to support’ the Council’s discretion is one it that has to be taken seriously (ie it must take into account all relevant facts, not ‘fetter’ this discretion, reach a reasoned decision etc[4]).

Commenting on the Council’s policy the ombudsman stated that:

It was ‘poorly written and does not reflect the law that applies to school and college transport for young people, including young people with special educational needs, in post-compulsory education’.

It failed to ‘take account of the different legal powers and duties the Council owes to different groups of young people. Different duties apply to:

  • young people of sixth form age;
  • adult learners; and
  • adult learners with an Education, Health and Care (EHC) Plan’.

Criteria 2), which restricts transport to those young people for whom exceptional circumstances impact on their ability to use public transport, does not reflect the law. The law requires the Council to consider whether it is necessary to make transport arrangements to facilitate a young person’s attendance at college, not whether there are exceptional circumstances.

Criteria 3), does not make sense.

Criteria 5), the requirement a young person attends the nearest establishment that can meet ‘the majority of their needs’ would be unlawful if applied to a young person with an EHC Plan. The Council has a duty to arrange provision to meet all the assessed needs of a young person with an EHC Plan, not ‘the majority’. The Council also has a duty to promote choice for adults with EHC Plans. Requiring a student to attend the nearest college does not promote choice.

Criteria 6), which requires a young person to follow a full-time programme of study, has no legal basis.

The ombudsman held that the travel assistance policy for post-16 students (and the Council’s use of it) was maladministration and recommended (and the Council agreed) that the policy be re-written.

For an earlier ‘post’ that considers an ombudsman’s report concerning post-19 education transport costs – click here.

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[1] Complaint no 18 015 84 against Bexley LBC 30 May 2019.
[2] Complaint no 18 012 904 against Bexley LBC 12 March 2019.
[3] A separate document listed travel assistance offered by external organisations.
[4] See generally L Clements Accessing Public Services Toolkit (Cerebra 2017 pages 24 and 28) and Staffordshire County Council v JM [2016] UKUT 246 (AAC) para 35 – 36.

So what do you do?

You are a health / social care professional. You have read up on the lawfulness of funding panels – but you now find yourself required to attend a panel to agree funding on a large package for someone with a substantial need for care and support. The panel has some esoteric title – but it is really a ‘rationing’ panel. Cases are often delayed (often sent back for more information) and care packages generally reduced (never increased).

You have in the past raised issues about risk and questions about urgency however these have been stonewalled. This causes you significant personal and professional concern – not least the risk posed to the persons in need, who are being left in dangerous unmanaged circumstances. Not only are people who don’t have first hand knowledge of the individual’s circumstances questioning / disputing packages of care you consider necessary, but they are also questioning your assessment and leaving you holding the risk.

 

What should you do?

It’s a difficult situation. You are working within an organisation that does not appear to be acting in a reasonable or, indeed, in a lawful way. Clearly the people you are assessing (and for whom you are care planning) are able to complain – but you know full well all the reasons why they are unlikely to do this. You could point them in the direction of an advice agency – but that could put you in an invidious position and there is a considerable shortage of support of this kind.

What do you do if senior officers are actively challenging you – when all you are doing is trying to follow your judgment and the law? In the case of a complaint’s investigator who considered she was being bullied – she contacted the ombudsman – without success (see ‘Omg … will it never end’).

This website focuses on the rights of disabled people, carers and their families, but it is patently obvious that day in day out countless front line workers in many (but not all) local authorities and the NHS face these challenges. It would be good if someone was able to write a piece explaining what can be done. This is a subject that the School of Law at Leeds Univeristy (Cerebra LEaP project) hopes to research but pending this it would be valuable to have ideas about what can be done. It may have to be an ‘authors name withheld’ piece, for all the predictable reasons.

Suggestions – in confidence – would be welcome.

Your council’s performance

The Local Government and Social Care Ombudsman has developed an on-line resource detailing the ombudsman’s contact with each English council – including (if you click on ‘annual statistics’) a copy of his annual ‘report’ letter.  These letters are mostly bland – but for a few naughty councils – they make interesting reading.  To access the tool – click here

Direct Payments: ombudsman’s report and research findings

Coinciding with a major research report[1] concerning the direct payments system – the Public Services Ombudsman for Wales has issued a hard hitting report[2] illustrating the problems with such payments in Wales.

The Ombudsman’s report describes a council that managed to get just about everything wrong in the way it calculated the amount of a direct payment and then (when the failure was patent) failed to set about remedying its error.  The complaint spans a period of almost six years and even at the end of this the ombudsman concludes that:

the remedial action taken by the Council was piecemeal and it lacked customer focus. From the information I have seen, I am not satisfied that all the arrears have been paid. Furthermore, the Council has not acknowledged the full extent of the failings in this case or offered a proper apology to Mr A for the impact on him and his family.

The Council accepted that there was a significant need for the family to have short breaks care – but failed to commission the care – such that the family agreed to have a direct payment to enable it to employ carers for this purpose.  The Council then used a flawed process for calculating the amount of the direct payment and (when this error was obvious) failed to reimburse the family for the full financial shortfall; failed to comply with the relevant guidance issued by the Welsh Government; failed to properly investigate the complaint; and exacerbated the problem by creating substantial delay.  The full ombudsman’s report can be accessed by clicking here.

 

Many of the failings identified by the ombudsman are problems highlighted in a research report[3] published by the School of Law, Leeds University Cerebra Legal Entitlements and Problem-Solving (LEaP) Project.

The research report found that direct payment rates of pay for Personal Assistants (PAs) were very low, typically at minimum wage rates. It concluded that in many council areas there is a serious ‘market failure’ – such that authorities are arguably in breach of their statutory and public law obligations to families with disabled children.  Its key findings include:

  • that Direct Payment rates were too low to employ suitable PAs despite their local authority being willing to pay much higher rates for agency staff;
  • that the difficulty of finding suitable staff who were prepared to work for the rates imposed by local authorities was a major and reoccurring theme of the survey as was fear by respondents of losing the Direct Payments if they were not able to find such staff;
  • that there was a lack of knowledge by families as to how Direct Payments were calculated and what the actual rate was in individual cases ;
  • that strict rationing of resources is resulting in families experiencing stress, an acute lack of support and prolonged ‘battles’ to secure basic services that they are entitled to by law.

To access the full research report, click here.

Photograph of ‘Gwyr’ by Richard Jones -@lluniaurich
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[1] L Clements, S Woodin, S McCormack and D Tilley Direct Payments for Disabled Children and Young People, and their Families (Cerebra 2019).
[2] The investigation of a complaint against Conwy County Borough Council.   A report by the Public Services Ombudsman for Wales: Case No 201800208 dated 31 July 2019.
[3] L Clements, S Woodin, S McCormack and D Tilley Direct Payments for Disabled Children and Young People, and their Families (Cerebra 2019).

Direct Payments for Young People

A survey of 52 social services authorities found that rates of pay for Personal Assistants (PAs) were very low, typically at minimum wage rates. The report concludes that in many local authority areas there is a serious ‘market failure’ – such that authorities are arguably in breach of their statutory and public law obligations to families with disabled children. The research was undertaken by the Cerebra Legal Entitlements and Problem-Solving (LEaP) Project based at the School of Law, Leeds University.

The key findings of the research include:

  • that Direct Payment rates were too low to employ suitable PAs despite their local authority being willing to pay much higher rates for agency staff;
  • that the difficulty of finding suitable staff who were prepared to work for the rates imposed by local authorities was a major and reoccurring theme of the survey as was fear by respondents of losing the Direct Payments if they were not able to find such staff;
  • that there was a lack of knowledge by families as to how Direct Payments were calculated and what the actual rate was in individual cases ;
  • that strict rationing of resources is resulting in families experiencing stress, an acute lack of support and prolonged ‘battles’ to secure basic services that they are entitled to by law.

 

The report’s recommendations include that the Secretary of State for Health and Social Care take action to address the severe market failure highlighted by the research (including the use of his powers of direction under Local Authority Social Services Act section 7D). It notes that action of this nature may also be necessary in Scotland, Wales and Northern Ireland.

To access the full report, click here.