Newham found to be at fault for disorganised and delayed planning of transition from children’s to adults’ services and for not responding appropriately to a complaint about it

Decision Date:  29/09/2022

What happened

Miss K was cared for by Mrs B who had been her foster carer since a very young age.

The council began the process of transition from children’s services to adults’ services less than a month before Miss K turned 18 in February 2019.

It was decided that Miss K would continue to live with Mrs B under a ‘Staying Put’ agreement and that Mrs B would need to go through the process of becoming a ‘shared-lives’ carer.

In February 2019 Miss K was assessed as lacking the capacity to manage her own finances and it was decided that as Mrs B was going to be a paid carer there would be a conflict of interest for her to manage Miss K’s finances going forward.

Mrs B signed a letter of relinquishment in April 2019, which allowed the Council to become appointee for Miss K’s benefits. The council applied to the Court of Protection to become Miss K’s deputy for finances but the CoP decided that Miss K should have an independent deputy.

Mrs B complained to the council regarding missed payments to herself between February and April 2019, and January and March 2021 – these had been agreed as part of the ‘staying put’ agreement to help by way of a contribution for Miss K’s lodging and the benefit she received from Mrs B’s expenditure on the household and utilities etc.. 

Mrs B complained that Miss K missed weeks of college due to no transport being provided; she complained for what she felt to be poor planning in regard to Miss K’s transition and for the council taking court action to take control of Miss K’s finances. Mrs B also complained about how the council dealt with a request for an amount of Miss K’s money to be paid to Mrs B, so that Miss K could go on a holiday she wished to go on, with Mrs B and other family members: Miss K’s access to the money was delayed.

The council arranged an independent investigation which requested a number of actions from the council in regard to their processes but did not recommend the council apologise to Mrs B.

Mrs B was unhappy with the outcome of the investigation and complained to the council that the investigation didn’t deal with some points that she had raised in her complaint.

If a complainant is unhappy with the outcome of the Children’s stage two investigation, they can ask for a stage three review by an independent panel. However, rather than refer it to the Panel provided for, the Council asked Mrs B for more information about her reasons for escalating the complaint. The council informed Mrs B that the investigation report was made for the council’s benefit and they therefore wouldn’t address her points or refer it upwards to anyone and that she could just complain to the Ombudsman.

As part of a separate safeguarding investigation, the Council visited Mrs B at home together with Social workers from the investigating authority, Kent County Council, where the client actually lived. Miss K was in another room in the house. Mrs B says that the Council’s social worker said that she could take Miss K from the placement immediately, and that Miss K, who had moved from the room she was playing in, overheard this. Mrs B said this caused Miss K significant and prolonged distress as she had been with the family from a very early age and would not want to be taken from them.

The independent investigation decided it could not reach a finding on this. It commented however that it would be a curious thing for a social worker to say as it is not the procedure, and that Mrs B should not have allowed K to overhear this. The Council agreed there could be no finding and added that it would not want to cause Miss K distress.

What was found

The Ombudsman found that the council was at fault in regard to many aspects of how they dealt with Mrs B’s complaint and that even the independent investigation failed to highlight where the council had been at fault.

The Ombudsman found the planning for Miss K’s transition to adult services inadequate and not carried out in a timely way which ultimately led to many of the issues that Mrs B complained about.

The Ombudsman found fault with the council’s telling Mrs B that the report from the independent investigation was for ‘their benefit’ and did not ‘need’ to address her points raised in the original complaint.

Satisfactory outcomes of an investigation into a complaint should benefit all parties involved and should address all points raised.

The Ombudsman found that there was no reason to disbelieve Mrs B’s account regarding what had occurred during the safeguarding investigation at Mrs B’s home, and even if the investigation could not make a finding, it was not appropriate for the investigation to find Mrs B responsible if Miss K overheard an inappropriate or unprofessional comment from a social worker.

The Ombudsman recommended the council pay £150 to Mrs B and £300 to Miss K to recognise the distress caused to them and a further £250 to be paid to Mrs B to recognise the time and trouble she had to go to as a result of the poor complaints handling.

The Ombudsman also recommended the council review their complaints handling procedure and provide training to relevant staff on complaints handling and when to refer to its reviewing panel. 

The Council says it has improved its processes and referrals now happen before the young person’s 17th birthday.

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

If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless it considered the investigation itself to be flawed. However, it will look at whether a council properly considered the findings and recommendations of the independent investigation.

When a child turns 18, they are legally an adult and adult social services become responsible for assessing needs and meeting eligible needs under the Care Act 2014. Children’s services cease being responsible for this under the Children Act 1989 once Adult social services have taken over. This report highlights that there are legal duties imposed upon local authorities to carry out transition planning early, if asked to do so, in the Care Act 2014 (s58). The Care and Support statutory Guidance para 16.7 states that:

“16.7 Transition assessments should take place at the right time for the young person or carer and at a point when the local authority can be reasonably confident about what the young person’s or carer’s needs for care or support will look like after the young person in question turns 18.”

The s58 assessment must identify the care and support needs of the young person and what adults’ services might look like, taking into account what their wishes are for the future. The assessment should also ascertain if any current caring arrangements are able to continue (implicitly voluntarily) once the young person turns 18. 

The purpose of the assessment is to provide the young person and their family with information in advance so they know what to expect in future and can prepare for adulthood.

Where disabled children have been fostered, it will always be clear that they will have significant care needs and that all such children will need or could at least benefit from assessment and care planning in preparation for transition to adult services.

This case shows the difficulties poor transition planning can cause and highlights the importance of following the legislation and guidance to achieve good outcomes for young people with care and support needs.

The report gives the impression that there is nothing wrong at all with the carer of a person who stays put under the auspices of a Staying Put agreement being told that they must become a Shared Lives carer if they wish to go on being paid. It says that Shared Lives Agreements involve the local authority paying a weekly fee to cover the rent and household costs, and the care and support provided.

That is simply not the case and the report refers to what is now a RARE form of agreement for Shared Lives – one which covers accommodation as well as care. The vast majority are for care only, with the person taking a licence or tenancy with the approved Shared Lives householder and then getting benefit to pay for the accommodation element. That form of Shared Lives agreement is simply an agreement for care from a self-employed person (never mind the CQC registration position, for now!)

What this report leaves out of account is that any person is entitled as an adult with eligible needs to request to have their needs met through a direct payment for employment engagement or purchasing arrangements, even if lacking in capacity. There are very few bases on which this can be denied. Any adult can also make a licence or a tenancy arrangement with their ex foster carer and thus organise their own housing. That means that they can get their Care Act adults’ assessment done on the same basis as any other parent or relative or friend of a disabled adult – that is they can ask for a proper individuated personal budget for their needs and have that converted into a direct payment which they can pay to their ex foster carer for care without any further need for a formal regulated status as a care provider.  The only requirement to make all of that possible, in our view, is that there is someone authorised by law to make both those contracts, and act as an Authorised Person for the management of the direct payment if the service user lacks capacity to have one in their own name. In our view, that can never be the ex-foster carer, him or herself, for that person would be a care provider, and purchaser – even the employer and employee – at one and the same time, and THAT IS a clear conflict of interest. It needs to be a Court appointed deputy – another family member, of the ex-foster carer, most likely, after what may be a decade or more of loving foster care.

We find it astonishing that councils tell ex-foster carers that they can’t be an appointee for the person’s benefits, as an adult, because of the conflict of interest in being a paid carer (where the ex-foster carer IS prepared to be a self-employed Shared Lives carer, that is, or otherwise paid privately through a direct payment held by the person or an Authorised Person if the service user is lacking in capacity).

For a start, councils themselves are the care planners and funders of the care in the first place, and yet also benefits appointees, in many situations; we have heard of a council protecting its own future charging position by snaffling a service user’s benefits surplus in their bank account after a family member took over Appointeeship from the council which we regard as a breach of fiduciary duty, before we even GET to the question of whether that council ever allowed for any DRE whilst it WAS the appointee!

Secondly, councils and the DWP still stand by and allow or even pressurise formal registered care providers into running Appointeeship FOR the service users. That used to be the standard expectation of all providers, and now it is required as ‘social value’ in many tendering procurement exercises.

Lastly, a person who is going to undertake paid care, even under a Staying Put arrangement is often going to be the person who is the best placed to understand the person’s needs for expenditure outside of the social services care package, ie within the household and the continuing ‘family’ life. Government guidance says that councils’ policies on ‘staying put’ should set out “whether additional allowances provided when the child was a foster child to ensure they were embedded in the family will continue, for example holiday allowances, birthday and Christmas/festival allowances”.

The system does not stop PARENTS accommodating their disabled adult sons and daughters from being their benefits Appointees or even their deputies, does it, whilst they provide masses of UNPAID care, which the State benefits from? We accept that we have to trust financial monitoring of the clients’ means and outgoing expenditure through the council’s Financial Assessment and treatment of Disability Related Expenditure (and the deputy’s return to the OPG) to do the job of scrutiny, but balanced with allowing people to make the most of their disability benefits in an individual way. This area of disabled people’s lives is well up for reconsideration by any Care Commissioner whom we may now see appointed in the next few years, we think.

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 on the actions of London Borough of Newham Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/transition-from-childrens-services/21-014-948

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