‘Omg … will it never end’

It is not every day that an ombudsman’s report refers to an investigator’s note saying the above.  Not every day that the ombudsman: asks a council to reflect on its obligations under the European Convention on Human Rights and the Equality Act 2010; refers to the number of inaccurate references a council has made to legislation; concludes that a council gave the impression that it was seeking to influence the outcome of an independent review of a complaint; refers to a council’s claim as being ‘disingenuous’.

For all our misgivings about the inadequate funding of the ombudsmen impairing their ability to hold councils’ to account[1] – the fact that reports of this nature emerge – revealing how some authorities operate in practice – is important.

Hopefully the local authority in question[2] will implement the ombudsman’s recommendations and take a long hard (and reforming look) at the organisational culture that allowed these deplorable events to occur.

In the next section we provide a résumé of the report and this is then followed by a reflective commentary by Paul Kelly – a highly experienced Independent Investigating Officer.

________________

 

The investigation concerned a complaint by a family (Mr & Mrs A and their 16 year old son X), for whom the ombudsman had already (a year earlier) upheld a complaint relating to a connected matter.  Problems persisted and a further complaint was made alleging (among other things): that the council had failed to assess X as a disabled child; had failed to assess Mrs A (as a parent carer); and had inappropriately influenced the role of the Independent Investigation Officer (IIO).

The complaint was made on 25 May 2017 and related to assessment failures that occurred in September 2016.  These dates are important, as the events in question post-date that coming into force of the Social Services and Well-being (Wales) Act 2014 (which occurred on the 6 April 2016).

The council had a policy, known as the ‘Derwen policy’, which stated – in effect – that children with ADHD, but who were not ‘disabled’ or did not have ‘significant developmental delay’ were ineligible for assessment / support as ‘disabled children’.  X had Autism and Pathological Demand Avoidance and although the Derwen policy did not specifically mention these conditions it is clear from the complaint, that the council also treated them in the same was as it treated ADHD.

The IIO investigated the complaints and in due course prepared a draft report which was overseen and approved by an Independent Person.  The draft report was shared with the council’s officers.  The officers were unhappy about the report – stating (among other things) that is was ‘very one sided’.  A meeting with the council was arranged and before this took place the investigator received a ‘flurry of documentation’ that she had not been shown during the investigation.  It was at this stage that the IP observed ‘Omg…will it never end’. The IIO was so troubled that she telephoned the Ombudsman’s Office for advice as to what to do at the meeting as (in her words) ‘it doesn’t seem right to me’.[3]

The IIO attended the meeting but had not anticipated being met by six senior council officers.  She felt ‘a bit overwhelmed’ and that she was being ‘bullied’. In this respect the ombudsman notes that there was an ‘imbalance in the number present at the meeting’ and that this was ‘sufficient to make her question, as she has, whether the independence of the process was being compromised’.   The council however stated that it was not seeking to influence the IIO into changing the report, ‘rather it wanted to make sure that “inaccuracies” were corrected’.  In this respect the ombudsman’s report concludes:

… the overall impression when viewed, objectively, is that the Council was unhappy with the findings. By acting as it did, it gives at least the impression that it was seeking to influence the outcome even though I have no hard evidence that this was its intention (bearing in mind it has denied such). However, that was how Mr & Mrs A saw it. Perception is often enough. On the evidence before me, bearing in mind the Council has not identified anything specific by way of ‘inaccuracies’, despite ample opportunity to do so, I find that it did act inappropriately.

 

The council refused to accept most of the recommendations in the final report (signed off by the IIO and the Independent Person) and in particular refused to undertake the recommended assessments of X and Mrs A.  In its opinion ‘X did not need care and support beyond that provided by his parents’ and that his needs did ‘not meet the criteria as a disabled child under the Equality Act 2000’.  Not only did the council get the year of the Act wrong – it also fundamentally misunderstood the law (not least – it seems – that the key Act was not the Children Act 1989 – as the material parts of this Act had been repealed by the Social Services and Well-being (Wales) Act 2014).  X had a Statement of SEN; the Council had accepted (in an earlier ombudsman complaint) that he required a specialist Autism assessment; and X was in receipt of the highest level of the disability related benefit (PIP).  The ombudsman also observed (as had the IIO) that X’s ‘child in need plan’ had not been reviewed for some time and so questioned how the council could confidently say he was ‘not disabled or had no unmet needs’.

This report is incredibly troubling on many levels – not least that a local authority had so clearly failed to understand its legal obligations.  What is (to an outside observer) of most concern, is the level and nature of challenge experienced by the IIO.  We are well aware of families being fearful of the consequences of complaining – fearful of retaliatory action by authorities[4] – but for a local authority to behave in the way described by the ombudsman towards independent investigators is shocking.  Complaints’ investigators are acting on behalf of Chief Executives / council members.  For a culture to develop where such an investigator considers that she is being bullied and for the ombudsman to agree that the impression given was of a council seeking to influence the outcome of an independent review – strikes at the very heart of the review process.  Ultimately senior legal officers and council members are responsible for the organisational culture of their authority – and these officers / members should take a long hard look at this report.

____________

 

We wanted to know if this sort of action by a local authority was unique – or whether complaints’ investigating officers encountered this on other occasions.  We therefore asked Paul Kelly – an expert Independent Investigating Officer of over 14 years to comment on whether, in his experience, overt pressure of this kind was sometimes placed on investigators – and for his general comments on the shortcomings of the social services complaints process as it currently operates.

General information about the social care complaints’ process in Wales is provided on the Rhydian pages – click here to access this note.

_________________________

 

Personal reflections of Paul Kelly – Experienced Independent Investigating Officer.

I was lucky: the first local authority to take me on as an independent investigator in 2004 was the best of the twenty or so I encountered (until finishing this role in 2018). After many years in the probation service, I knew about writing reports, but not much about the world of social care. That first authority gave me a good grounding, including encouragement to make strong statements in my Stage 2 reports. The complaints manager knew her job inside out and was confident in her level of independence from social care structures. There was joint training with the local government ombudsman and with social care managers.

Much turned on the qualities of that complaints manager and I relied on her for advice and guidance. Not only that, reports did not get past her unless the arguments and quality stacked up: she never sought to influence findings. As a matter of routine there was a meeting with the adjudicating officer (i.e. the senior manager responsible for the local authority’s response to the complaint) after reports were submitted. Some probing was to be expected. Overall, it was a good thing: it kept me on my mettle and I had a reasonable sense of what the local authority was going to do about my findings and recommendations.

Even within that system there were some awkward moments but nothing serious, except perhaps when the authority did not want to accept a report I had written in Easyread (or as close as I could get to it). My view was that the report needed to be accessible to the person with learning disabilities who had made the complaint: the authority’s view was that the report should have been conventional but with separate interpretation for the complainant. My mistake was not discussing that properly with the complaints manager beforehand.

What if there is no complaints manager or if there is somebody in the role without the strengths of the manager I have described above? In my experience, only a handful came anywhere near the standards set in that first local authority, which in any case began to dismantle as austerity-driven cuts began and the manager left.

I have illustrated the good, what about the bad? Have I ever experienced anything as bad as the case discussed above? Yes, up to a point but not very often. One local authority tried to put a stop to an investigation I was carrying out. Among various machinations, they consulted their legal department about grounds for removing me as independent investigator and attempted to include a senior manager in our interviews with service delivery staff. The independent person objected to that and together we produced our reports that, in the end, a disgruntled head of service had to accept and agree. The independent person was heavily involved and enormously helpful: I concentrated on the complaints while he watched over the process, reporting on the heavy-handed and inappropriate actions of the authority. I had been on the point of taking the matter to the chief executive (complaints arrangement are under that person’s responsibilities) but we got through without needing to do that.

Why could this have happened? The complaints manager had recently departed. She and her staff had previously encouraged investigators to be thorough and probe hard but fairly. They did not like to re-employ investigators who produced half-hearted or poorly argued work. They were actively pursuing early resolution work and had nurtured a group of high quality independent persons. The good work of previous complaints managers unraveled when a new hardline regime of disruptors took charge, so creating confusion, misunderstanding and not a little mayhem. The independent person and I were among the first to feel the chill. Did we get any further work from that authority? I think the answer to that question will be obvious.

I could describe two further examples of local authorities that behaved badly. Both involved directors bypassing adjudicating officers, getting too heavily involved but ultimately having to give ground. Both instances also included newly appointed complaints managers who were administrators rather than complaints professionals. The role of the complaints manager is crucial, without one – or without a good one – I think it is far more likely that things will go wrong. Complaint investigations are often serious and complex: local authorities need steady hands on the tiller.

Out of my more than 90 enquiries, three featured overt attempts at undue influence by local authorities. I checked with a colleague who has much more complaints experience than I: we agreed that in the main, local authorities respected the independence of investigators and did not seek to influence findings and recommendations.

Thee overt attempts were three too many. I am inclined to think that covert influencing is more prevalent. Well-run independently focused complaints sections provided me with plenty of work. Those repeat commissions dried up when regimes changed. Was that anything more than coincidence?

With experience of a very well-run complaints section, I was used to having all records readily available and staff interviews arranged for me. Legal advice was available and training provided. It was a shock to do work elsewhere where nothing very much was made available and investigators had to go hunting for records. Typically there was no training and no legal advice despite some tricky legal questions being involved in an investigation. Interviews with staff were variable: some were very cooperative and came fully prepared, others were unprepared and vague giving apparent compliance and little more. I made notes of all meetings and they went to interviewed staff in draft form, but all too often without reply. More than once key staff who had moved on to different authorities refused to be interviewed, even though they had been centrally involved with the matter complained about. And social care records? I am afraid, criticising them could be no more than shooting fish in a barrel.

I have worked on Stage 3 review panels: they are, in effect, an appeals process for complainants dissatisfied with Stage 2 outcomes. Poor quality independent investigator reports have been a recurring feature. Examples have included: local authorities’ versions being too readily accepted; descriptions of legal positions being wrong; key complaints information being omitted; absence of meaningful analysis; reports being padded out with unnecessary narrative (20,000 words on occasion) and the investigator and independent person declining to look at relevant supporting material offered by complainants.

Sad to say, I have witnessed poor practice by independent persons who did little more than be there and contribute virtually nothing. After a Stage 3 panel, an IP apologised to me, saying that she had been busy getting ready for a holiday and had not really checked the investigator’s report. After a lengthy interview with a couple (who were supporting complainants in a particularly difficult case) the IP sarcastically commented that had been two hours of life wasted. By way of contrast, unpaid volunteers in one local authority who had not worked in social care carried out some of the most truly outstanding independent person work.

Local authorities may have occasionally – but not routinely – sought to interfere overtly with findings and recommendations and perhaps more frequently, covertly show ‘controversial’ investigators the door but without telling them that was happening. More troubling was the amount of poor service received by people making complaints and authorities’ apparent willingness to accept, repeatedly, below par reporting and from the same investigators, possibly because their work tended to favour the authority.  An odd point of view held by some investigators was that of not challenging social workers’ as to the basis on which they had exercised professional discretion.

Of course, practical considerations come into play. One local authority told me they tended not to look for new investigators because it was quite difficult to get them on the books for payment. There was in the region a merry-go-round of the same people who would appear sometimes as investigators, sometimes as independent persons and sometimes as panel members. A Stage 2 investigator might find a buddy sitting on the Stage 3 panel with obvious dangers. I suspect (I have no proof) that over time a kind of group mentality developed that was not sufficiently child or client-centred. One possible indication of that was the absence of the children’s voice in reports where complaints had been made on their behalf by carers. Investigators may (or may not) have seen the children, but have not thought to include anything about their wishes and feelings in reports. On one occasion when acting as an IP, it was necessary to remind the experienced investigator to go back to the complainants, ask for permission to see the children, talk to them about their wishes and feelings and to include that in the Stage 2 report. I suspect, but have no evidence, that it would be even more likely for disabled children to be excluded.

People who complain tend to be relatively powerless: I am inclined to think that the system and standards of investigation and reporting would soon have to change if catering for middle-class complainants. Even though much of my complaints work was in urban mixed communities, I can only think of one complainant who was not white; all the complaints investigators and independent persons I encountered were white. I thought I detected dog-whistle racism in one case of an Eastern European complainant, but that person did not want the matter pursuing.

There is much more that could be written on the social care complaints system for children, including how its original intention of giving children a voice has been overtaken by adults. I have given a flavour of the way the system operates based on my observations – I have had no research evidence for reference and so have relied on what I have seen and what I think rather than what can be shown as generally the case. I think there are a number of serious flaws in an over-elaborate and under-regulated system that relies too much on process (i.e. going through the steps one by one) rather than outcomes (i.e. stopping to think how to resolve complaints quickly and well). An indication of process becoming tangled, is the length of time it can take to come to the end of the line. The initial Stage 2 deadline according to regulations is generally 25 working days, but in my experience – and in the case illustrated above – it can take years from the point a complaint is made to a final decision being reached. I have seen no complaints at Stage 2 dealt with within 25 working days. Something needs to be done.

.
[1] Coinciding with a significant increase in complaints due to the legal aid and cuts to local authority budgets.
[2] The investigation of a complaint against Gwynedd Council.   A report by the Public Services Ombudsman for Wales: Case No 201801474.
[3] A footnote in report then states “The Ombudsman has a written record of a telephone call received from the IIO wherein it was noted she was seeking legal advice. As that is not the Ombudsman’s function (and his investigation at that time related to different events), the IIO was told that the Ombudsman could not offer such advice. No detail was otherwise discussed.
[4] K Simons, I’m Not Complaining, but . . ., Joseph Rowntree Foundation, 1995 and see also House of Lords and House of Commons Joint Committee on Human Rights The Human Rights of Older People in Healthcare Volume I – Report and Formal Minutes Eighteenth Report of Session 2006-07 HL Paper 156-I (The Stationery Office 2007) para 235 which referred to the power imbalance that exists and the department of health’s acceptance that ‘fear of complaining was a problem’ of ‘people feeling able to complain without retribution’.

‘Omg … will it never end’

It is not every day that an ombudsman’s report refers to an investigator’s note saying the above.  Not every day that the ombudsman: asks a council to reflect on its obligations under the European Convention on Human Rights and the Equality Act 2010; refers to the number of inaccurate references a council has made to legislation; concludes that a council gave the impression that it was seeking to influence the outcome of an independent review of a complaint; refers to a council’s claim as being ‘disingenuous’.

For all our misgivings about the inadequate funding of the ombudsmen impairing their ability to hold councils’ to account[1] – the fact that reports of this nature emerge – revealing how some authorities operate in practice – is important.

Hopefully the local authority in question[2] will implement the ombudsman’s recommendations and take a long hard (and reforming look) at the organisational culture that allowed these deplorable events to occur.

In the next section we provide a résumé of the report and this is then followed by a reflective commentary by Paul Kelly – a highly experienced Independent Investigating Officer.

________________

 

The investigation concerned a complaint by a family (Mr & Mrs A and their 16 year old son X), for whom the ombudsman had already (a year earlier) upheld a complaint relating to a connected matter.  Problems persisted and a further complaint was made alleging (among other things): that the council had failed to assess X as a disabled child; had failed to assess Mrs A (as a parent carer); and had inappropriately influenced the role of the Independent Investigation Officer (IIO).

The complaint was made on 25 May 2017 and related to assessment failures that occurred in September 2016.  These dates are important, as the events in question post-date that coming into force of the Social Services and Well-being (Wales) Act 2014 (which occurred on the 6 April 2016).

The council had a policy, known as the ‘Derwen policy’, which stated – in effect – that children with ADHD, but who were not ‘disabled’ or did not have ‘significant developmental delay’ were ineligible for assessment / support as ‘disabled children’.  X had Autism and Pathological Demand Avoidance and although the Derwen policy did not specifically mention these conditions it is clear from the complaint, that the council also treated them in the same was as it treated ADHD.

The IIO investigated the complaints and in due course prepared a draft report which was overseen and approved by an Independent Person.  The draft report was shared with the council’s officers.  The officers were unhappy about the report – stating (among other things) that is was ‘very one sided’.  A meeting with the council was arranged and before this took place the investigator received a ‘flurry of documentation’ that she had not been shown during the investigation.  It was at this stage that the IP observed ‘Omg…will it never end’. The IIO was so troubled that she telephoned the Ombudsman’s Office for advice as to what to do at the meeting as (in her words) ‘it doesn’t seem right to me’.[3]

The IIO attended the meeting but had not anticipated being met by six senior council officers.  She felt ‘a bit overwhelmed’ and that she was being ‘bullied’. In this respect the ombudsman notes that there was an ‘imbalance in the number present at the meeting’ and that this was ‘sufficient to make her question, as she has, whether the independence of the process was being compromised’.   The council however stated that it was not seeking to influence the IIO into changing the report, ‘rather it wanted to make sure that “inaccuracies” were corrected’.  In this respect the ombudsman’s report concludes:

… the overall impression when viewed, objectively, is that the Council was unhappy with the findings. By acting as it did, it gives at least the impression that it was seeking to influence the outcome even though I have no hard evidence that this was its intention (bearing in mind it has denied such). However, that was how Mr & Mrs A saw it. Perception is often enough. On the evidence before me, bearing in mind the Council has not identified anything specific by way of ‘inaccuracies’, despite ample opportunity to do so, I find that it did act inappropriately.

 

The council refused to accept most of the recommendations in the final report (signed off by the IIO and the Independent Person) and in particular refused to undertake the recommended assessments of X and Mrs A.  In its opinion ‘X did not need care and support beyond that provided by his parents’ and that his needs did ‘not meet the criteria as a disabled child under the Equality Act 2000’.  Not only did the council get the year of the Act wrong – it also fundamentally misunderstood the law (not least – it seems – that the key Act was not the Children Act 1989 – as the material parts of this Act had been repealed by the Social Services and Well-being (Wales) Act 2014).  X had a Statement of SEN; the Council had accepted (in an earlier ombudsman complaint) that he required a specialist Autism assessment; and X was in receipt of the highest level of the disability related benefit (PIP).  The ombudsman also observed (as had the IIO) that X’s ‘child in need plan’ had not been reviewed for some time and so questioned how the council could confidently say he was ‘not disabled or had no unmet needs’.

This report is incredibly troubling on many levels – not least that a local authority had so clearly failed to understand its legal obligations.  What is (to an outside observer) of most concern, is the level and nature of challenge experienced by the IIO.  We are well aware of families being fearful of the consequences of complaining – fearful of retaliatory action by authorities[4] – but for a local authority to behave in the way described by the ombudsman towards independent investigators is shocking.  Complaints’ investigators are acting on behalf of Chief Executives / council members.  For a culture to develop where such an investigator considers that she is being bullied and for the ombudsman to agree that the impression given was of a council seeking to influence the outcome of an independent review – strikes at the very heart of the review process.  Ultimately senior legal officers and council members are responsible for the organisational culture of their authority – and these officers / members should take a long hard look at this report.

____________

 

We wanted to know if this sort of action by a local authority was unique – or whether complaints’ investigating officers encountered this on other occasions.  We therefore asked Paul Kelly – an expert Independent Investigating Officer of over 14 years to comment on whether, in his experience, overt pressure of this kind was sometimes placed on investigators – and for his general comments on the shortcomings of the social services complaints process as it currently operates.

General information about the social care complaints’ process in Wales is provided on the Rhydian pages – click here to access this note.

_________________________

 

Personal reflections of Paul Kelly – Experienced Independent Investigating Officer.

I was lucky: the first local authority to take me on as an independent investigator in 2004 was the best of the twenty or so I encountered (until finishing this role in 2018). After many years in the probation service, I knew about writing reports, but not much about the world of social care. That first authority gave me a good grounding, including encouragement to make strong statements in my Stage 2 reports. The complaints manager knew her job inside out and was confident in her level of independence from social care structures. There was joint training with the local government ombudsman and with social care managers.

Much turned on the qualities of that complaints manager and I relied on her for advice and guidance. Not only that, reports did not get past her unless the arguments and quality stacked up: she never sought to influence findings. As a matter of routine there was a meeting with the adjudicating officer (i.e. the senior manager responsible for the local authority’s response to the complaint) after reports were submitted. Some probing was to be expected. Overall, it was a good thing: it kept me on my mettle and I had a reasonable sense of what the local authority was going to do about my findings and recommendations.

Even within that system there were some awkward moments but nothing serious, except perhaps when the authority did not want to accept a report I had written in Easyread (or as close as I could get to it). My view was that the report needed to be accessible to the person with learning disabilities who had made the complaint: the authority’s view was that the report should have been conventional but with separate interpretation for the complainant. My mistake was not discussing that properly with the complaints manager beforehand.

What if there is no complaints manager or if there is somebody in the role without the strengths of the manager I have described above? In my experience, only a handful came anywhere near the standards set in that first local authority, which in any case began to dismantle as austerity-driven cuts began and the manager left.

I have illustrated the good, what about the bad? Have I ever experienced anything as bad as the case discussed above? Yes, up to a point but not very often. One local authority tried to put a stop to an investigation I was carrying out. Among various machinations, they consulted their legal department about grounds for removing me as independent investigator and attempted to include a senior manager in our interviews with service delivery staff. The independent person objected to that and together we produced our reports that, in the end, a disgruntled head of service had to accept and agree. The independent person was heavily involved and enormously helpful: I concentrated on the complaints while he watched over the process, reporting on the heavy-handed and inappropriate actions of the authority. I had been on the point of taking the matter to the chief executive (complaints arrangement are under that person’s responsibilities) but we got through without needing to do that.

Why could this have happened? The complaints manager had recently departed. She and her staff had previously encouraged investigators to be thorough and probe hard but fairly. They did not like to re-employ investigators who produced half-hearted or poorly argued work. They were actively pursuing early resolution work and had nurtured a group of high quality independent persons. The good work of previous complaints managers unraveled when a new hardline regime of disruptors took charge, so creating confusion, misunderstanding and not a little mayhem. The independent person and I were among the first to feel the chill. Did we get any further work from that authority? I think the answer to that question will be obvious.

I could describe two further examples of local authorities that behaved badly. Both involved directors bypassing adjudicating officers, getting too heavily involved but ultimately having to give ground. Both instances also included newly appointed complaints managers who were administrators rather than complaints professionals. The role of the complaints manager is crucial, without one – or without a good one – I think it is far more likely that things will go wrong. Complaint investigations are often serious and complex: local authorities need steady hands on the tiller.

Out of my more than 90 enquiries, three featured overt attempts at undue influence by local authorities. I checked with a colleague who has much more complaints experience than I: we agreed that in the main, local authorities respected the independence of investigators and did not seek to influence findings and recommendations.

Thee overt attempts were three too many. I am inclined to think that covert influencing is more prevalent. Well-run independently focused complaints sections provided me with plenty of work. Those repeat commissions dried up when regimes changed. Was that anything more than coincidence?

With experience of a very well-run complaints section, I was used to having all records readily available and staff interviews arranged for me. Legal advice was available and training provided. It was a shock to do work elsewhere where nothing very much was made available and investigators had to go hunting for records. Typically there was no training and no legal advice despite some tricky legal questions being involved in an investigation. Interviews with staff were variable: some were very cooperative and came fully prepared, others were unprepared and vague giving apparent compliance and little more. I made notes of all meetings and they went to interviewed staff in draft form, but all too often without reply. More than once key staff who had moved on to different authorities refused to be interviewed, even though they had been centrally involved with the matter complained about. And social care records? I am afraid, criticising them could be no more than shooting fish in a barrel.

I have worked on Stage 3 review panels: they are, in effect, an appeals process for complainants dissatisfied with Stage 2 outcomes. Poor quality independent investigator reports have been a recurring feature. Examples have included: local authorities’ versions being too readily accepted; descriptions of legal positions being wrong; key complaints information being omitted; absence of meaningful analysis; reports being padded out with unnecessary narrative (20,000 words on occasion) and the investigator and independent person declining to look at relevant supporting material offered by complainants.

Sad to say, I have witnessed poor practice by independent persons who did little more than be there and contribute virtually nothing. After a Stage 3 panel, an IP apologised to me, saying that she had been busy getting ready for a holiday and had not really checked the investigator’s report. After a lengthy interview with a couple (who were supporting complainants in a particularly difficult case) the IP sarcastically commented that had been two hours of life wasted. By way of contrast, unpaid volunteers in one local authority who had not worked in social care carried out some of the most truly outstanding independent person work.

Local authorities may have occasionally – but not routinely – sought to interfere overtly with findings and recommendations and perhaps more frequently, covertly show ‘controversial’ investigators the door but without telling them that was happening. More troubling was the amount of poor service received by people making complaints and authorities’ apparent willingness to accept, repeatedly, below par reporting and from the same investigators, possibly because their work tended to favour the authority.  An odd point of view held by some investigators was that of not challenging social workers’ as to the basis on which they had exercised professional discretion.

Of course, practical considerations come into play. One local authority told me they tended not to look for new investigators because it was quite difficult to get them on the books for payment. There was in the region a merry-go-round of the same people who would appear sometimes as investigators, sometimes as independent persons and sometimes as panel members. A Stage 2 investigator might find a buddy sitting on the Stage 3 panel with obvious dangers. I suspect (I have no proof) that over time a kind of group mentality developed that was not sufficiently child or client-centred. One possible indication of that was the absence of the children’s voice in reports where complaints had been made on their behalf by carers. Investigators may (or may not) have seen the children, but have not thought to include anything about their wishes and feelings in reports. On one occasion when acting as an IP, it was necessary to remind the experienced investigator to go back to the complainants, ask for permission to see the children, talk to them about their wishes and feelings and to include that in the Stage 2 report. I suspect, but have no evidence, that it would be even more likely for disabled children to be excluded.

People who complain tend to be relatively powerless: I am inclined to think that the system and standards of investigation and reporting would soon have to change if catering for middle-class complainants. Even though much of my complaints work was in urban mixed communities, I can only think of one complainant who was not white; all the complaints investigators and independent persons I encountered were white. I thought I detected dog-whistle racism in one case of an Eastern European complainant, but that person did not want the matter pursuing.

There is much more that could be written on the social care complaints system for children, including how its original intention of giving children a voice has been overtaken by adults. I have given a flavour of the way the system operates based on my observations – I have had no research evidence for reference and so have relied on what I have seen and what I think rather than what can be shown as generally the case. I think there are a number of serious flaws in an over-elaborate and under-regulated system that relies too much on process (i.e. going through the steps one by one) rather than outcomes (i.e. stopping to think how to resolve complaints quickly and well). An indication of process becoming tangled, is the length of time it can take to come to the end of the line. The initial Stage 2 deadline according to regulations is generally 25 working days, but in my experience – and in the case illustrated above – it can take years from the point a complaint is made to a final decision being reached. I have seen no complaints at Stage 2 dealt with within 25 working days. Something needs to be done.

.

Photograph of ‘Tudraeth’ by Richard Jones -@lluniaurich
.
[1] Coinciding with a significant increase in complaints due to the legal aid and cuts to local authority budgets.
[2] The investigation of a complaint against Gwynedd Council.   A report by the Public Services Ombudsman for Wales: Case No 201801474.
[3] A footnote in report then states “The Ombudsman has a written record of a telephone call received from the IIO wherein it was noted she was seeking legal advice. As that is not the Ombudsman’s function (and his investigation at that time related to different events), the IIO was told that the Ombudsman could not offer such advice. No detail was otherwise discussed.
[4] K Simons, I’m Not Complaining, but . . ., Joseph Rowntree Foundation, 1995 and see also House of Lords and House of Commons Joint Committee on Human Rights The Human Rights of Older People in Healthcare Volume I – Report and Formal Minutes Eighteenth Report of Session 2006-07 HL Paper 156-I (The Stationery Office 2007) para 235 which referred to the power imbalance that exists and the department of health’s acceptance that ‘fear of complaining was a problem’ of ‘people feeling able to complain without retribution’.

Arrangements to move a care home resident at short notice

An important ombudsman report has outlined key considerations to be taken when it becomes necessary to move a care home resident (in this case one with dementia).

The resident (aged 91) was funded by a local authority and her home had been chosen as it was near to her husband (aged 90) whose health made it inappropriate for him to travel long distances to visit her. Unbeknown to the husband the home had been in discussions with the Council for over two years about funding levels. In July 2017 it told him that his wife would need to move (as a registration change would prevent it from accommodating patients with EMI needs). What followed was a hasty search by the husband for a suitable care home for his wife – while the local authority acted with insufficient urgency. When the husband chose a care home above the local authority ‘going rate’ he was required to ‘top up the fees’ which the ombudsman thought to be inappropriate: that the ‘grounds on which the Council argued against the suitability of the [home chosen by the husband] (and the appropriacy of the alternatives) were purely financial and not based on any clear, up-to-date sense of precisely what [his wife’s] needs were’.

To access the full report, click here.

 

Photograph of ‘Maen y Gaseg’ by Richard Jones -@lluniaurich

 

Pre-payment cards and direct payments

Think Local Act Personal (TLAP) has published guidance concerning the use by local authorities of pre-payment cards for direct payments / personal budgets. TLAP describes itself as a ‘national partnership’ that includes the Department of Health and Social Care, the Social Care Institute for Excellence and the Association of Directors of Adult Social Services (ADASS) – so this is guidance that courts would consider to be ‘weighty’.  The guidance can be accessed by clicking here.

The guidance formalises a report published in 2017 by the Personal Independent Living Strategy Group.[1] It states in clear terms that people cannot be forced to use such cards – something that many local authorities seemed to have trouble understanding.

The 2017 research found that:

  • local authorities were spending over £1.2m a year on fees and costs to operate the cards and that two commercial companies dominated the market;
  • some authorities were ‘imposing the cards on recipients of direct payments contrary to statutory guidance’;[2]
  • the number of people using such cards was set to increase rapidly, as many authorities were making them ‘their default offer’;  
  • the cards enable authorities to view all transactions in ‘real time’ (raising significant data protection concerns) and to tightly control their use;
  • some local authorities were placing blanket restrictions on cardholders using the payment cards to withdraw cash despite clear guidance from the Department of Health that this was not acceptable;[3]

 

The guidance from TLAP is to be welcomed. It is worth reading in full[4] but includes:

  • Payment cards should be an active choice made by the person from a range of meaningful options, including a traditional direct payment paid into an account managed by the person or their representative;[5]
  • Each year the local authority should publish a statement detailing the numbers of people they provide personal budgets to, the proportion who use payment cards, and the fees incurred;
  • There should be no default restrictions on the places in which and services for which the card can be used;
  • Any restrictions on the use of the care funds associated with payment cards should be individually placed and be proportionate to specific, identified, documented and assessed risk.

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[1] Personal Independent Living Strategy Group Payment cards must support not restrict choice and control for users of direct payments (2017).
[2] For relevant sections of the statutory guidance see for example paras 12.58 – 12.59.
[3] Statutory guidance’ para 12.59.
[4] To access the guidance click here.
[5] Here this is simply restating what is in the statutory guidance paras 12.58 – 12.59.

Charges for community care

For many disabled people the cut backs in social care support have been accompanied by steep increases in local authority charges[1] exacerbated by the freezing of threshold allowances for the last nine years.  This has meant that any increase in their income has simply been appropriated by their local authority.[2]

Charging is – in effect – a tax on disabled people and it is resulting in great hardship.  A 2017 survey[3] commissioned by the Independent Living Strategy Group found (for example) that 40% of people receiving social care support had experienced a substantial increase in the level of charging over the past 2 years and that for a third of the respondents, the increase had been over 50%.  For 43% this meant that they had reduced spending on food and 40% had reduced what they spent on heating.

There are rules about how much a local authority can charge (and for what) as well as rules about the process it must follow when seeking to increase charging rates.  There is evidence that some local authorities are not following these rules: three requirements that appear to have been neglected on occasions are:

1. Before a local authority decides to make a significant increase its community care charges, it must undertake a valid consultation exercise – as to what it is proposing and the alternatives that it has considered.  This is an obligation of common law[4] as well as a statutory obligation – for example to demonstrate that it has had due regard to its Public Sector Equality Duty under Equality Act 2010 s149.

 

2. Any general increase in charges produced by a policy change of this kind, must result in a personal reassessment: the local authority cannot simply send out demands for increased sums.  There are a number of reasons for this requirement.  Local authorities are, for example, under an over-riding obligation to ensure that their charging processes are ‘person-focused’ and that individuals are not charged more than it is ‘reasonably practicable for them to pay’ (para 8.2 of the statutory guidance).  There is also, of course, a real risk that sending out demands for increased payments – without a person-focused discussion – will result in some disabled and elderly people simply terminating essential care and support on the grounds that they believe that it is unaffordable.

Local authorities are under a duty to meet the eligible needs of disabled people.  They do not have to charge (but have a discretion to do this if they wish).  A discretion does not trump a duty.  The pre-Care Act 2014 guidance said this in explicit terms:

Once someone has been assessed as needing a service, that service should not be withdrawn because the user refuses to pay the charge. The council should continue to provide the service, while pursuing the debt, if necessary through the civil courts.[5] 

This obligation was also emphasised by the ombudsman.[6]  In this context the Care Act 2014 regime would appear to be no different.

 

3. In R v Coventry City Council ex p Carton,[7] (a case decided prior to the Care Act 2014 coming into force) the High Court held that it was irrational, unlawful and unfair for a council to have a charging policy which treated income (specifically paid to cover night time care needs[8]) as available to pay for care charges relating to daytime care services.[9] Although the statutory guidance to the 2014 Act (at annex C paras 39 and 40) makes tangential reference to this issue, it falls short of the automatic disregard for night time payments applied in Carton.  Some local authorities have interpreted this as an invitation to treat income specifically designated for night time care (ie a PIP or DLA payment) as income available for charging purposes – even if the person’s care and support is only provided during the day.  It needs to be restated that if it was ‘irrational, unlawful and unfair’ for the income to be taken into account prior to the CA 2014 – it is (in the absence of statutory authority to the contrary) irrational, unlawful and unfair to do this under the Care Act 2014.

For a general note on how care charges can be challenged – click here.

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[1] It is difficult to put a precise figure on the recent increase in charges, as the number of people receiving support varies and accordingly the income derived from charging – see Association of Directors of Adults Social Services ADASS Budget Survey 2018 p.22 (the 2019 Survey lacks this data).
[2] See Brian Collinge The charging regulations and injustice at http://www.lukeclements.co.uk/the-charging-regulations-and-injustice/
[3] John Waters Charging for Social Care: A tax on the need for support? Disability Rights UK (2018) 2017 survey
[4] See for example R v Coventry City Council ex p Carton (2001) 4 CCLR 41 (at 44D), QBD and Department of Health Fairer charging policies for home care and other non-residential social services June 2013 see for example paras 11, 19, 84 and 101 which states ‘Where changes in charging policies would result in significant increases in charge for some users, this should be specifically explained and considered as part of the consultation’.
[5] Department of Health Fairer charging policies for home care and other non-residential social services June 2013 para 99.
[6] Complaint no 99/C/1983 against Durham CC, 9 October 2000.
[7] R v Coventry City Council ex p Carton (2001) 4 CCLR 41, QBD (at 44G).
[8] In this case Disability Living Allowance (DLA) payments for night time care needs.
[9] This finding was then reflected in the relevant guidance – namely Department of Health Fairer charging policies for home care and other non-residential social services June 2013 paras 32 – 44.
 

Wales to widen Equality Act 2010 duty

As part of the Welsh Government’s commitment to tackling unequal outcomes caused by socioeconomic disadvantage, the Deputy Minister, Jane Hutt, has announced that it plans to make ‘rapid progress over the next few months with a view to the socioeconomic duty being commenced later this year’ – click here for her announcement.

Scotland implemented such a measure last year (click here for details) and for a report by the Equality and Human Rights Commission concerning socio economic rights – click here.

DWP and MoJ unlawful inaction

Legal research by the International Disability Law Clinic at the School of Law, Leeds University concludes that the Government’s policy of not installing audio recording equipment for all Personal Independence Payment (PIP) assessments and at all Social Security and Child Support Tribunal venues is unlawful.

Key messages from the report (attached) include:

  • The policy has a disparate and an adverse impact on disabled people, and lacks objective justification;
  • The Department of Work and Pensions’ (DWP) delay in honouring its commitment to put in place recording equipment at every mandatory medical assessment for a PIP, constitutes a breach of the Government’s obligations under the Equality Act 2010, the European Convention on Human Rights Article 6 and the UN Convention on the Rights of Persons with Disabilities Article 13 – as well as its public law obligations;
  • The Ministry of Justice’s (MoJ) failure to assess (or indeed to acknowledge) the harm that results from the absence of recording equipment at SSCS Tribunal hearings – constitutes a breach of the Government’s obligations under the Equality Act 2010, the European Convention on Human Rights Article 6 and the UN Convention on the Rights of Persons with Disabilities Article 13 – as well as its public law obligations;
  • These failures by the DWP and the MoJ are causing significant and predictable harm to disabled people and would appear to be actionable by way of a judicial review in the High Court;
  • The research underpinning this report includes a Freedom of Information Request to the Ministry of Justice (Appendix A below) which reveals that:
    • there are no SSCS Tribunal venues in London with recording equipment;
    • only 91 (out of 161) hearing centres in England, Wales and Scotland have recording equipment;
    • the cost of installing recording equipment is about £1,000 per venue and that the annual maintenance cost is approximately £15.00.

For a copy of the report, click here and for the disability news service coverage of the findings click here.