Wirral Council at fault for delay in sharing Tribunal outcome with the Adult Social Care Team

Decision Date: 7th July 2020

What happened

Mr X had ADHD and autism. He lived in shared supported living accommodation. 

In 2017 discussions took place between Mr X, his parents and the Council, about moving or going to a different residential college (College Y). Following a visit to College Y, Mr X said he liked it. However, there had to be a SEN Tribunal Hearing in order to get Council funding for a placement there.

An Adult Social Care team social worker was asked to carry out an assessment of Mr X for the Tribunal Hearing and so a needs assessment was carried out in September 2017. It stated that he responded well to structure in daily activities and felt safe when these were pre-planned; and he experienced difficulties with social interactions and communication, especially in new surroundings so was easily stressed by loud noises and unfamiliar environments.

An Order was made at the Tribunal that the Council should facilitate and fund a residential placement for Mr X at College. This is an education function.  As College Y did not provide student accommodation during college holidays the Order also directed that the Council would maintain supported accommodation for outside of term time, although a Tribunal does not have any such power to determine SOCIAL care support; housing is not social service OR education. The Order was sent to the SEN manager and the Council’s Solicitors by the Tribunal on 13th September 2017.

Mr X moved into College Y on 30th October 2017 but it wasn’t until the 9th November 2017 that the Council forwarded a copy of the Tribunal Order to the Adult Social Care team.

Mr X’s advocate also sent an email to the Council pointing out:

  • Mr X needed a care package locally during holiday periods the first of which was in only 5 weeks, from 7th December 2017 to 3 January 2018.
  • The use of accommodation such as Shared Lives was suggested but Mr X knew very little about it.
  • The uncertainty of not knowing where he would live during the holiday period was unsettling for Mr X.
  • Mr X wanted to have information about proposed housing placements by Monday 13th November, to enable him to make any choices presented to him. 

No response was received from the council to that email. 

Adult social care received the copy of the Order on 9th November 2017 and allocated Mr X’s case to a new social worker who immediately tried to organise the Christmas holiday accommodation. The social worker met with Mr X, his advocate and his parents on 22nd November to discuss this. It was explained that the limited timescale meant the Council may have to organise a residential placement if a Shared Lives carer was not possible and Mr X said he would accept whatever could be arranged, providing it was near to his parents.

After the meeting, the social worker tried to arrange a Shared Lives placement. The provider had a carer in mind and said they would meet Mr X first. Unfortunately, the day after this meeting took place the Shared Lives carer became ill and could no longer take Mr X. No other Shared Lives placement were available and so this left the Council with only one week to identify a different placement for Mr X.

In the end, and due to a lack of space Mr X had to:

  • Stay with his parents on 7th December.
  • Stay in Home 1 from 8th until 11th December
  • Stay in Home 2 from 11th until 15th December
  • Stay in home 1 again from 15th December until 2nd January 2018

Mr X returned to college on 3 January 2018 and his parents told the Council that he had made the most of Home 1, because it was near to them but had found Home 1 difficult. Home 2 had been a better option despite being further away from his parents. Mr X believed that if the Council had pursued the option of Shared Lives providers sooner, the problems with the homes could have been avoided. 

On 29th December 2017 Mr X made a complaint about the above events which he sent to a manager within the Council. The complaints team did not become aware of this until 30th January 2018 when they then sent it to the local Health Trust for reasons not explained in the report.

The Trust responded in March 2018 but to an incorrect email address. The council complaints team chased the response in June 2018 but did not provide a response to Mr X until over a year later in June 2019. The Council policy for responding to complaints was within 5 weeks.

What was found

The Council told the LGO that the Adult Social Care Team were awaiting the formal outcome of the Tribunal which wasn’t shared with them until November, before making any arrangements. During this time, the Council did not update Mr X about what was happening with his case. The Council should have shared the Tribunal Order with adult social care immediately. It did not do so for 2 months which was fault.

The Council also should have contacted Mr X or his advocate in a timely manner when it received the Tribunal Order, to have a discussion about how it would take the Order forward. This would have ensured Mr X, or his advocate, could have highlighted the importance of making any arrangements in a timely manner to avoid any stress and ensure the correct accommodation provision could be identified in time. The Council was at fault in failing to do this. 

The LGO acknowledged that once the case was allocated to a social worker in November 2017, it progressed quickly. However, if the faults had not occurred, Mr X’s case would have been allocated earlier, which would have reduced the distress Mr X experienced during this time.

The LGO recommended that the Council apologise and pay Mr X £200 in recognition for the distress caused. 

Failure by the complaints team in monitoring the process and progress through which Mr X’s complaint was being dealt with resulted in an unreasonable delay of almost 17 months, which caused distress to Mr X.

The LGO recommended that the Council pay Mr X a further £200 in recognition for the distress caused and review how they monitor the complaints process.

Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public. 

This complaint is focused on delays in acting and in communication within the Council itself.

Education authorities, children’s services and Adult Social Care Teams exist because of functions in legislation. They may be spread across two or more departments within the same organisation but the staff in them seem to work in silos and find it difficult to communicate with each other. The supposedly holistic nature of the Education, Health and Care Plan all too often seems to fall down at the point when a person becomes an adult and can expect care to transfer to adults’ from children’s services to support any ongoing education or training that is still considered to be due.

The LGO doesn’t consider whether fault belongs to a particular department but finds fault with the Council.     It doesn’t say how OLD the young man was but he may well have been 17 or even 18 when this was happening.

A tribunal order – even one that carries no legal weight with regard to adult social care duties – should never just sit there. The Council should have acted promptly to deal with the requirements. The impact of not doing so was uncertainty and distress for Mr X as well as being deprived of choice around provision.

We say ‘even one that carries no weight’ because the SEN Tribunal has no power to order adults’ social services teams to do or spend or arrange anything. Its comments about the C bit of a plan are only made at the level of recommendation.

Within The Send Regulations 2014 there are time limits for local authorities to act when a SEND tribunal makes an order. However, these all pertain to Education provision or actions relating to the maintaining, amending or ceasing the E part of an EHC plan. 

In relation to Care Act duties the separate legal framework contains no set time limits. But public law principles say that all duties would need to be met in a reasonable time which would always depend on the circumstances.

Any unconscionable delay is challengeable in the Administrative Court but the LGO route offers an effective free alternative as long as it is not an urgent matter. In such cases, one can get the Monitoring Officer in any council to consider whether the delay is a likely contravention of an enactment or rule of law, in which case the Monitoring Officer must intervene or do a report for the whole elected Membership. It is a high level form of governance and the MO can effectively determine that whatever was proposed SHOULD NOT happen and thus provide the equivalent of an injunction. But FORCING action in the face of inaction does not seem to happen with any real regularity, even through this route.

The LGO also found the Council at fault for failing to speak with Mr X following the order being made. This would be a natural next step for any council directed to carry out specific actions that would affect a person.

Although once the adult services social worker became involved a placement with a Shared Lives carer was quickly identified this was just as quickly lost again when the carer was taken ill with only a week to go. That might have happened anyway – but forewarned would have been forearmed.

As a result of what happened options for accommodation and support were limited because it was so late in the day. The Care and Support statutory guidance stipulates that the care provided must be adequate and appropriate to be sufficient to meet the needs of the person. Whilst the three settings Mr X stayed in met his needs on a basic level, i.e. put a roof over his head and offered him support, this care planning was not sufficient to meet the needs that the Council was aware of and in that situation interim arrangements could have been made to ameliorate his lot, in some way. This is what the law requires when what is ideally needed, isn’t available for whatever reason.  

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site. The full Local Government Ombudsman report of Wirral Metropolitan Borough Council’s actions can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-004-800

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