Decision Date: 21 February 2023
What happened
Ms X had physical health issues which significantly affected her mobility, dexterity, and balance. Due to the physical aspects of parenting, the birth of her child In November 2019 led to an increase in her home support from 15 to 105 hours per week.
In May 2021, a scheduled re-assessment of Ms X’s needs was conducted, which resulted in a continued finding of eligibility for support, which included carrying out caring responsibilities for a child. No concerns regarding Ms X’s parenting were highlighted, but the assessment recommended Ms X’s package be reduced from 105 to 28 hours per week and that children’s services should conduct a child and family assessment on the basis that most of the hours to which Ms X was entitled and which adult social care (ASC) funded related to her caring responsibilities for her child, but ASC ‘did not support children’.
The Council did not state whether children’s services would make up the shortfall or note when the reductions in ASC support would start. Ms X was very anxious and fearful as to her ability to care for her child safely if and when at an unstated time to come, support was removed. This continued until in August 2021, when while Children’s services and Adult social care were still in discussions regarding responsibility for Ms X’s funding, she took an overdose, triggering a ‘child in need’ meeting.
An ASC panel, which was due to discuss the implementation of the proposed reductions to Ms X’s care, was postponed and Ms X instructed a solicitor who asserted to the Council that: removal of ASC support would be subject to legal challenge as Children’s services had not agreed to provide the necessary care thereby putting Ms X and her child at risk and that Ms X had an entitlement to ASC to meet the eligible need of caring for a child in her own right. The ASC remained in place and Children’s services concluded their assessment. They found no safeguarding concerns and stated that the family support should come from ASC.
In January 2022, Ms X complained to the Council, saying she had been caused distress since May 2021 due to uncertainty around where her care would come from and if it would be reduced, and that this had caused her to experience a mental health crisis. She also said the SW had told her that she should be receiving 105 hours per week for the physical aspects of parenting and an additional 15 weekly hours for her own care needs, but that she had never actually received the total 120 per week. The Council response said plans to reduce her care were “on hold pending the outcome of a formal review”; that it agreed with her concerns; and that it was “encouraging” that the prior decision was now subject to a review. It did not however, address the incorrect amount of hours received.
The review with respect to Ms X’s care needs was conducted in February 2022. Again, it found Ms X to be eligible for support to achieve the outcome of caring for her child. It then noted Ms X was experiencing mental health issues and that she had taken an overdose after reductions to her package had previously been proposed. The assessor however again recommended reducing Ms X’s care package on the same grounds as before.
Thereafter ASC made a ‘child in need’ referral to children’s services requesting an urgent assessment of the child’s needs, saying it was in the process of reducing Ms X’s care package thereby engendering the status of ‘a child in need’. Ms X complained to the Council again who simply responded by saying the review of her care package had been finalised.
What was found
During its investigations, Ms X provided the LGSCO with a SW email stating Ms X’s weekly hours were 105 plus 15. Further information from the Council indicated this to be 90 plus 15, which was the quantity the Council told the LGSCO that ASC would continue to provide unless circumstances changed.
Regarding the complaint about the proposed reduction in care hours, the LGSCO noted that, having determined Ms X to be eligible for support to care for her child, the Council should have developed a care plan to meet those needs. Instead the ASC team sought to transfer this responsibility to Children’s services twice over nine months, the second instance of which occurred despite a recent legal challenge and in the knowledge that Children’s services had already concluded it was not responsible for providing care.
As such, the Council made and repeated its mistake, failed to adopt person-centred care and support planning and allowed the disagreement between its departments to impact upon Ms X. This was fault. Additionally, no time frame for the proposed reductions to Ms X’s support was given, or reassurances as to how her ongoing needs would be met. Therefore the lack of corporate ownership of the situation and failure to give clear continuity-related messages caused Ms X severe, avoidable anxiety. The Council was at fault.
Additionally the Council failed to give due regard to Ms X’s Article 8 rights. The assessments identified a need for support with parenting but said Ms X had no right to this support from adult social care such that while caring for a young child Ms X had to endure significant fear that the Council would cease to protect her right to a family and private life. The Council was at fault.
Regarding the ‘child in need’ referral ASC made to Children’s services on the basis that it intended to reduce Ms X’s care package, this caused Ms X to undergo a parenting assessment despite no concerns as to her parenting being raised and the use of this referral as a mechanism to trigger financial negotiations between departments was emotive, inappropriate and not the person-centred care planning required by the Care Act. The Council was at fault.
With respect to the number of agreed care hours, on the balance of probabilities it seemed that the SW who told Ms X she should be receiving a total of 120 hours care per week was simply mistaken, as no other piece of evidence corroborated that. This mistake raised Ms X’s expectations and took her time and trouble in making a complaint about it, to which the Council failed to provide a formal response, but were not at fault for failing to provide any agreed hours.
In terms of a remedy, the LGSCO required Croydon, within one month, to:
- apologise to Ms X for:
- repeatedly advising ASC was not responsible for providing support to enable her to care for her child, and the significant uncertainty and distress this caused her.
- providing incorrect information regarding care hours, putting Ms X to time and trouble complaining and not responding thereafter.
- pay Ms X £500 to reflect the severe uncertainty and distress caused around how she would safely care for her child.
Within three months, Croydon was also required to:
- establish why the Council officers carrying out the assessments believed that ASC had no responsibility to fund Ms X’s eligible needs around caring for her child;
- hold a ‘lessons learned’ meeting within ASC to prevent the same happening again and remind all ASC staff of the Council’s duties around:
- eligible outcomes under the Care Act regulations 2015 – specifically with regard to caring for a child and
- Article 8 of the Human Rights Act, which protects the right to a family and private life and defines the limited circumstances in which a public authority can interfere with this.
- the relevance of Article 8 when assessing the care needed for disabled adults to care for their children.
- show the LGSCO they had complied with these measures.
Points to note for Councils, professionals, people using services and their carers, advocacy groups, members of the public
Eligibility for support with carrying out caring responsibilities one has for a child is a domain in the Eligibility Regulations, while Section 6 of the Care Act places a duty on the local authority for cooperation between its adult care and children’s services.
One would think that the need for agreement between internal departments within a local authority on how best to share overlapping responsibilities should be second nature to local authorities by now (with the Care Act having now been in place for a significant period of time) negating this wrangling and shirking of responsibility at the expense of the adult eligible for support and in this case, and in this case, at the expense of the child.
The law is very simple: a child with a disabled parent IS likely to be a child in need, and all the more so the less the Adults’ department delivers, and social services is not obliged to provide a service that simply enables the child’s other parent if on the scene to abdicate from their share of the responsibility arising from choosing to HAVE a child, but that having been said, the situation cries out for an agreed protocol!!
With existing guidance already in place stating local authorities should consider producing a combined plan where two or more services are working together, it is surprising that these two departments had not worked out a policy on how such costs could be met/apportioned between the two or why they did not have a standard policy to undertake a joint assessment in such cases.
The LGSCO highlighted in its report that the local authority had failed to adopt person-centred care and support planning. This is one of the fundamental principles of the Statutory Guidance/Act – the person centred approach.
It is good that the LGSCO made detailed recommendations about what should follow in terms of investigations and lessons to be learned, to ensure similar incidents do not occur in future. We liked the idea of probing how it could possibly BE that the adults’ officers didn’t realise that with support for parenting being one of the ten outcomes domains of daily living, it was the plainest of plain interpretation matters to figure out that the adults’ team must take the primary responsibility. That comes close to the LGSCO saying ‘How come your staff don’t know the Care Act’, which is long overdue, we think.
The LGSCO made a recommendation of the £500 payment to Ms X to reflect the period of severe uncertainty and distress she was caused regarding how she would safely care for her child, but nothing reflecting the time and trouble Ms X was put to in raising the complaint and the council’s failure to respond to her concerns.
We have frequently seen symbolic payments made to reflect a person’s time and trouble. The LGSCO guidance says” the remedy payment for time and trouble is likely to be up to £500 with respect to how an organisation has considered the complaint”. Whilst we note that an apology was the remedy recommended in this regard, the local authority had determinedly failed to respond to Ms X’s concerns and we believe that a symbolic payment could have been made in this respect too, especially in light of the LGSCO guidance of a payment being considered where the “injustice of time and trouble is above what is considered usual.”
In considering aggravating factors for a remedy, the LGSCO guidance states “factors that could increase someone’s vulnerability and consequently worsen the impact of an organisation’s fault” include the person’s mental and physical health. Considering that the local authority continued unlawfully to put forward the position that Adults’ Services were not responsible for the funding after Ms X’s mental health crisis and hospitalisation, we believe there were factors in place for the LGSCO to consider a more substantial payment remedy.
Referrals make it clear to us that many councils do not consider the duty to meet these needs in the same manner as they would for other domains/areas of daily living. We think that this is the ideal sort of a matter to refer to the Monitoring Officer as a likely contravention of the Care Act, because this one report is the tip of the iceberg, as far as we are concerned. The LGSCO has acknowledged that it might itself make a referral in such cases – where systemic illegality is the concern, affecting many others in that situation.
The full Local Government Ombudsman report on the actions of the London Borough of Croydon Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/22-002-217