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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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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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.

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.

 

‘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.

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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.

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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.

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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.

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[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’.

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.

.

[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.