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.

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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.
 

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.

Disabled Facilities Grants (DFGs) and social care responsibilities

An important ombudsman report[1] has just been published that reaffirms that:

  1. social services authorities have duties under the Care Act 2014 to ensure that necessary home adaptations are provided and that this ‘responsibility cannot be passed on to another organisation’
  2. when it is appropriate for a person to apply for a Disabled Facilities Grant (DFG) then the social services authority must act speedily to facilitate this and its duty does not end ‘until the needs are met’ (para 8);
  3. the target timescales detailed in the 2013 Homes Adaptations Consortium statutory guidance[2] are a relevant benchmark for assessing whether a local authority has acted reasonably. As the ombudsman states:

15. The guidance gives target timescales for dealing with cases at each of the three stages. For Stage One, it recommends 95% of urgent cases are completed within 5 working days and 95% of non-urgent cases within 20 working days. An urgent case is defined as a situation where the disabled person cannot be discharged from hospital or cannot access essential facilities within the home. A case is defined as non-urgent if the person cannot use the home fully but can access the toilet and bathing facilities.

16. The guidance recommends the total time to complete all three stages should be no more than 55 working days for urgent cases and 150 working days for non-urgent cases.

 

The report concerns a mother who had had a stroke which meant, among other things, that she could only walk short distances indoors by supporting herself on furniture or using a crutch – and that she had some continence needs.  She lived with her three children (all under 18) in a housing association property.

As the bathroom was on the first floor and her impairments largely confined her to the ground floor, this meant she had to use a commode (which one of her children emptied twice daily) and she had to strip-wash at the kitchen sink using a perching stool.  Her children also helped prepare meals and do the housework / kitchen work, and one was responsible for bathing the youngest child.

The Adult Social Care team was asked to assess the mother’s need for support (as a disabled parent) but nothing was put in place (in terms of support for the family / young carers) for 7 months.

The initial assessment also identified an urgent need for adaptations.  The social services Occupational Therapy (OT) assessment in relation to this need was not, however, sent to the Housing Association or to the District Council (to process a DFG application) for 22 months after first contact. Having done this, the social services authority then closed her case.

In finding multiple instances of maladministration, the ombudsman noted:

  • For more than two years, Ms X has not been able to make proper use of her home. She cannot access essential bathing and toileting facilities. She has no privacy because she is sleeping on a sofa in the living room (para 63);
  • Ms X’s inability to access essential bathing and toileting facilities put her in the category of urgent need according to the definition in the non-statutory guidance (para 65);
  • Closing the file before the Council knew her assessed needs had been met, was maladministration (para 68);
  • There had been inadequate liaison / information sharing with the District Council and the Housing Association (para 69);

 

The remedy recommended by the ombudsman included an apology, a payment of £3,600 ‘to recognise the significant distress, inconvenience and loss of dignity and independence caused by its delay’; and for the local authority to draw up a protocol for effective joint working with its District Councils and registered social landlords – to ensure home adaptations for tenants are planned and delivered in a timely way.

[1] Complaint no 18 003 223 against Norfolk County Council 4 March 2019.
[2] Homes Adaptations Consortium Home adaptations for disabled people: a detailed guide to related legislation, guidance and good practice (2013).

Extra care housing: ‘just in time’ systems are for cars not care

Extra care housing is a good idea. In practice however it looks to be failing all but the wealthy. This ‘post’ describes the idea behind extra care housing schemes and the challenges they face. It concludes with an incredibly insightful account by an extra care housing resident.

Extra care housing is a term applied to specialised housing for older people. Although such housing schemes can take various forms, their key features are: that residents live in their own self-contained flats (historically a mix of rented and leasehold properties); that these are designed to be accessible; that there is support available, including an emergency alarm, a warden and generally a care and support team; and there are communal facilities such as a restaurant, activity rooms, a laundry etc.[1]

Research demonstrates that extra care housing offers significant cost benefits for individuals and the state (particularly in terms of savings to NHS and to social services budgets[2]). It appears however that local authority commissioning arrangements are having an adverse impact on the viability of many schemes, as are reductions in grant funding from central government.[3] The problem being that instead of co-funding a care and support team capable of responding to needs flexibly – authorities are only funding specific time restricted interventions for eligible residents – often via care assistants on low hourly wages / zero hours contracts.[4]

The wealthy can, of course, have access to a dedicated good quality care and support service. As the account below makes clear, a crucial ‘quality’ factor is the availability of care and support when the person needs it: people may have good and bad days, may want to go to bed later in the summer than the winter, may not always be able to predict to the nearest 15 minutes when they will need to go the toilet and so on. For the system to work, therefore, there must be flexibility with carers ‘on call’ at all times and inevitably this means that there will be slack time when the carers are not actively caring – but available should an unforeseen need arise. Such a model is person centred, delivers quality care and (as the above research strongly indicates) provides significant cost saving for the NHS and local authorities. There will, however be an additional cost for the actual extra care housing scheme – in the funding of the ‘slack time’. If it is a commercial business (and most are) then the cost will have to be paid by the ‘self-funding’ home owners and/or the council responsible for those with eligible needs. With austerity economics, as noted above, most councils are only prepared to fund the bare minimum of support and only in pre-specified time limited interventions. The consequence is indignity, distress and pain for people reliant on social services funding and increased expenditure by the state when their health deteriorates and they require more expensive care in terms of acute hospital care, nursing and residential care.

The business model that operates in practice is one that can best be described as a ‘just in time’ system:[5] a model that works well for some car assembly lines. Nothing is paid for until it is needed, nothing is kept in reserve and nothing pauses – ‘just in time’ clockwork for the utterly predictable. People are not objects: their needs are unpredictable and varied, and as the account below makes clear, disabled people’s needs for care and support fluctuate and yet when they arise, the need is often ‘immediate’.

Extra care housing ~ a resident’s perspective

The thing that attracted me to the extra care flat was its specification, its view and its location. It was not cheap (it is shared ownership). Once I started to buy my share I was surprised how expensive the additional admin fees were (over and above the purchase price).

The development is run as a business and with a timetable: it is very ‘organisation conscious’ – but this has never been a good thing for social care. I was surprised how commercial extra care housing is and how much everything costs: if you want a light bulb put in and don’t have a friend to do it – you have to pay the maintenance person £15 to put it in. You first have to put in a request, you then have to wait until they have time and they won’t do it until you have paid in advance – which creates a slightly unpleasant atmosphere.

The interesting thing about personal care is that I like the idea of having the carer on the premises – but the thing I was most astonished by was how the front line carers were so friendly and human and it was the managers that are much tougher. The carers are subject to a mish-mash of contracts. Some have zero hours contracts and some have basic contracts. The pay is, I think, very low and the younger ones are on the minimum wage.   This has meant that there has been a fair turnover as the demand varies in the building, as some people get better / need less care and this makes the carers angry as the work dries up – as they need the money. There is also a problem about not getting paid at the right time (sometimes a week or so late). Sometimes the management will call carers at 6am and expect them to be in by 6.30am – and because they are hard up they will do it. They get angry when they work from 6am – 9am and then suddenly there is no work and they then have to sit around until 12 before they next have work (and pay).

I have five short care visits timetabled for specified times from early in the morning to my bedtime. When I moved to the flat I had to state a bedtime and I was only able to have a specified time as all the other slots were taken.   I used to moan about this and get an extension if I was lucky – and then in the hot summer I didn’t want to go to bed at that time but I was told it was ‘take it or leave it’. I managed to get it moved to a time that was too late but it was the only choice and preferable to [the too early time. However, as it was the last bedtime slot it meant that I had often to wait an additional 30 or 45 minutes as the carers would often be running late and getting / behind by that time.

On the night shift, there are just two carers working – and they have to do some ironing as well. If there is an emergency then someone may have to wait for an hour – before they can pull someone off their routine.

So if I need to go to the toilet at a time other than your specified time – there is nothing that can be done unless I am lucky and the supervisor will try and help – but often they won’t try. They will say ‘it is not an emergency if you soil yourself (you don’t die)’ – this happens quite a lot. One night the water bottle I was using for drinks leaked and I was wet all over. I rang and they said that is not an emergency. Later on I called again and argued but they said it was not an emergency.

You are always taking things up with the carers who can’t do anything about this – as it is the supervisors and you never get to see them. If you want to make changes to the care arrangements they always seem to go completely awry. This is because they have not got enough people –and so have to take someone from one job to fit in: there is no leeway – in fact they often don’t have enough time to do their work. There are certain supervisors who will never help while others will try.

I have been in situation of agony wanting to get to the toilet and the supervisor has refused (saying all the cares ae at a training event) and I have had to wait 2 hours – and then my carer comes at the usual time and says why didn’t you call – we were only sitting around. There is very poor communication between staff supervisors and residents and no one ever knows what is happening until about five minutes before it does. When you get to my age and you need to open your bowels you cannot sit around and wait – say it is 3pm and the next call due at 6pm. One afternoon I had this need I rang and they said ‘no’ and I pleaded as I was also waiting for the doctor. Eventually after an hour and a half the doctor came and I was in a complete state and although I was ringing – time and time again – and they refused. The doctor called out loudly when I was on the phone saying she could not manage and miraculously two care assistants came almost immediately. The doctor was appalled but I don’t think she did anything about it. This also happens when I go to hospital – as you don’t get assistance there so I have to wait until I come back to go to the toilet. But if I have missed my call time (because I was at hospital) then I have to wait until my next booked slot – and I just can’t wait but they refuse to help. On one occasion I was in this position and was left in a wheelchair wet for a long time. Although a friend who saw this complained – and also complained to the Quality Commission I think, and I have never heard anything back about this.

One of the things that really troubles me is that they never listen. It is very easy when you are dealing with lots of old people with different abilities to dismiss them and to think that they don’t understand and ignore what they have said. They are in such a hurry and if you have a condition such as mine – then you can’t speak or do anything quickly – they simply don’t have the time. They will tell you sometimes when they answer a bit sharper – ‘don’t waste time talking as we have got to get on with this’. They will come in and immediately want you to do things – because they have such little time ‘chop chop chop’ – to brush your teeth, put in your eye drops and sit on the bed pan all at the same time and they will stand over you and say ‘have you finished … have you finished’. It make you so stressed and you end up in an argument with them and then they defend themselves saying we can’t help it we have got to go to other people and there are other people than you and Tom, Dick and Harry down the corridor will be very upset if we don’t come soon. I say I am not responsible for them and I then get told that I am.

If people came late – you don’t get your full amount of time – but they have no choice as they can’t be in the same place at the same time. My care has to finish here at the same time as they have to help someone three blocks away – so they have to shave of 5 mins here and there.

I don’t think people understand neurological conditions – but they don’t realise how it affects the things they are trying to do – so when they say ‘hurry up … hurry up’ I can’t cope.

I don’t like it when they talk over your head ‘has she had a bath’ …’is she wanting a shower’.

What I’d like them to understand is the use of language and talking over you – the issue of treating you as 80 and not 8 – and people that think they know more about your condition than you.

One of the things about language is the things they write in the book such as ‘she refused to have a bath / shower’ – but I didn’t – I simply said I don’t think I need one today –that is really different.

Some of the problems with extra care housing is that they are short of money and don’t want to pay the staff, so they skimp on employing enough staff and the pressure on the staff gets transferred onto the residents. Residents have been disappointed by quite a few things and therefore the management gets under pressure. They have fallen out with the residents over the facilities – the poor restaurant food as there is no proper kitchen. Part of the reason for living here was the idea that if I didn’t want to cook one day I could get a meal at the restaurant but this is no longer an option due to the lack of adequate quality / lack of imagination. They did a survey of the food quality and we had no information about the results for months and then when it fed back nothing was done. The lack of an adequate community bar / restaurant means there is not a social space – which is a particular problem for people who live on their own.

[1] See generally J Payne & J Mills Extra Care Housing: Technical Brief (Housing Learning & Improvement Network 2014).
[2] C Holland et al Collaborative Research between Aston Research Centre for Healthy Ageing and the ExtraCare Charitable Trust (Aston University 2015) and A Netten et al Improving housing with care choices for older people (PSSRU Kent 2011).
[3] Current funding (2018 – 2021) amounts to £125 m – see Homes England The Care and Support Specialised Housing Fund (CASSH) (2018).
[4] For an excellent ‘must read’ paper written from the perspective of care workers see for example, L.J.B. Hayes ‘Work-time Technology and Unpaid Labour in Paid Care Work: A Socio-legal Analysis of Employment Contracts and Electronic Monitoring’ (chapter 9) in Sian Beynon-Jones & Emily Grabham (eds) Law and Time (Routledge 2018) pp. 179-195.
[5] Lee Humber uses this analogy when critically analysing the use of remotely operated ‘motion detector’ systems for monitoring adults in need – see Lee Humber ‘Neoliberalism and the crisis in health and social care’ International Socialism: A quarterly Review of Socialist theory Issue: 155, 29 June 2017 at http://isj.org.uk/neoliberalism-and-the-crisis-in-health-and-social-care/#footnote-10080-65-backlink accessed 18 May 2019.

Post-19 education transport costs

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

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

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

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

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

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

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