Date of Decision: 8 August 2024
Summary
Devon County Council’s Children’s and Adults’ services teams were found at fault with regard to transition care planning for a man with an EHCP whose needs had been on the radar since he was 15. Care planning appeared to have been cost-driven instead of needs-led and not compliant with government guidance. The LGSCO issued a public interest report because of the failings being so fundamental and causative of injustice and distress.
What happened
Miss B, complained on behalf of her son, ‘Mr C’, now aged 19, about failings by Devon to ensure an effective transition of social work services when Mr C turned 18 and responsibility passed from its children’s to its adults’ care services. Mr C is autistic and has ADHD. In January 2020, Mr C had just turned 15 years old in December 2019. The Council assigned his case to an adult social worker (‘Social Worker X’) from its ‘Preparing for Adulthood’ team.
Children’s services completed an early assessment of Mr C’s needs in March 2020. [The report does not say what status this report had under any of the Acts that could have been seen as requiring it.]
The Council said this assessment was completed under the Care Act 2014 (ie it was a transition assessment under s58). However, the assessment paperwork did not contain any reference to the tests set out in s58 of the Act.
The assessment recorded that Social Worker X would:
- refer Mr C’s case to the Council’s autism / ADHD team “for his transition to adult social care”; and
- also attend a review of Mr C’s EHC Plan in Year 11 of his education.
In December 2020, Mr C moved to a residential school with accommodation outside the Council’s area. The Council provided this accommodation under Section 20 of the Children Act.
In the year he was due to become 18, and with the involvement of his IRO at his last statutory review as a child, Devon’s Adults’ and Children’s social work and placement team specialists liaised, seemingly on the basis that living back in Devon, implicitly in supported living, would be the aim and that it would be arranged in time.
In March 2022, the Children’s team identified a children’s home in Devon with good transport links about 10 miles from the family home. It had flats providing for supported living for young adults as well.
Miss B and Mr C were left with the impression that Mr C could live in the children’s home until July 2023 whilst waiting for a flat there. His EHC P review regarding preparation for adulthood was left blank.
From May onwards in 2022 it was understood internally that no commitment to keeping Mr C in the current placement had been secured from Adults’ Services. In July 2022, the Children’s Permanence Panel approved the move to the care home without any input from Adults’ Services. He moved in August 2022 with a view to stability and security. He settled well. His EHCP was amended naming an education setting accessible from his placement
The report does not make it clear but EITHER the children’s home cost OR the cost of supported living if the move were to be made to a flat adjacent to CH1’s children’s home facility was or was going to be, respectively, about £5600 a week.
The care home’s view however was that Mr C was not ready for supported living and could stay in the home for another few months.
The Adult’s social worker recorded this on an internal email: “I’ll be told to move him regardless of any agreement [CH1] may have made with children’s services”. Children’s team staff did not seem to know that they could continue funding, beyond the age of 18.
One month before his 18th birthday an Adults’ Panel recommended the social worker consider potential funding for a hotel, and to contact a variety of housing or supported living providers for an ‘emergency placement’. The Care Act transition assessment, begun in July was finished in November. It did not comment on what type of accommodation he needed, but envisaged a future living independently in a flat, but for now needing a suitable adult placement with access to the same education provider and ideally in the same area as CH1 because of his family connection.
In fact, in the end, Mr C had to move to a supported living placement for £950 a week. It was 30 miles from CH1 and 40 miles from Miss B with poor public transport links, making it harder to meet his need to maintain relations with his family. It was 60 miles from the education setting. The SEN team said nothing when asked for its view; the children’s team escalated the matter to the Assistant Director of Adult Social Care. The IRO expressed concern too about the lack of a narrative as to what Mr C could expect.
He was funded for a further 4 weeks at CH1, and the Children’s team withdrew its social work service.
The Council’s record showed that he was unhappy, demotivated, struggled with the loss of routine, missed his educational placement, disengaged from services and that his mental health suffered. Notice by the home was given in late January 2023 on account of his obvious deterioration.
The move went ahead in February 2023, and after the half term break around March there was no funded transport to the education setting able to be found even though Education accepted that it needed to pay for it.
What was found
The Council said that it did not consider funding Mr C’s placement at CH1 a “medium or long-term option” because of its cost.
It drew the LGSCO’s attention to its ‘fair and affordable care policy’. This says all decisions on funding care are decided on a case-by-case basis but as part of decision making the Council can take account of its budget in line with Government guidance.
[People can look at it here, https://www.devon.gov.uk/adult-social-care/document/fair-and-affordable-care-policy-2/]
It was reportedly the culture in Devon that adult services sometimes require young adults to move from accommodation commissioned by children services because the services “work to completely different frameworks”, but was unable to provide figures about how often this had happened in the past 12 months.
In response to questions about why it did not arrange for an advocate for Mr C, despite references to this in its paperwork, the Council told the LGSCO that it initially considered this. However, it was Social Worker Z’s professional view that Mr C did not need an advocate, given Miss B’s support and that he did not have substantial difficulties.
Children’s Services said Mr C needed security, stability and routine on returning to Devon. It also knew these could not be guaranteed without Adults’ Care Services agreeing on the approach. But despite a series of meetings in June and July 2022 – including a statutory review, consideration by something called a ‘permanence panel’ and a specific transition meeting – no consideration was given to what would happen once Adults’ Care Services became responsible for supporting him.
This meant that there was no consideration given to the cost of the accommodation or when Mr C might move to the adjacent supported living flats that were available from the provider.
There was nothing in Mr C’s pathway plan or family plan, both produced in Summer 2022, that went beyond discussion of his relationship with Miss B and that he would have more contact with her once he returns to Devon. The documents were not forward-looking.
The Care Act assessment completed in November 2022 when he was already an adult could not be considered a transition assessment either. There was a collective failure of both services to adequately assess and plan for Mr C beyond his eighteenth birthday. That was fault.
The record was unambiguous that the impetus for ending Mr C’s accommodation at CH1 arose from ASC not wanting to pay for it. While ultimately CH1 gave Mr C notice to leave, this only followed a period of several weeks where he became unsettled because of his knowing he had to move. The comments of the IRO, CH1, his education provider and his personal adviser all show the impact this had on Mr C’s self-management.
The LGSCO found it telling that Social Worker Z’s notes show that he anticipated this outcome, with a decision driven by considerations about cost alone.
The cost of CH1 was high, several times more than what a supported living placement might have cost. The government guidance on taking cost into account as ONE relevant consideration makes clear that decisions must still be person-centred and also take account of individual needs.
The Council’s approach to Mr C’s case was fundamentally flawed from November 2022 onward, because it was not person-centred and did not take account of his individual needs. There was no evidence found in the care planning documents of how the Council came to the view Mr C needed supported living and not residential accommodation, nor any evidence that the council drew up a personal budget and care and support plan (everyone’s basic entitlement under the Care Act). But even if there was an audit trail showing these matters, the Council would still have needed to identify the right supported living choice to meet Mr C’s needs.
The Council did however understand the potential impact of its decision making. It was willing to let Mr C become homeless in December 2022 and only the eleventh-hour intervention of children’s services and the IRO prevented that.
The move to supported living accommodation took place before any arrangement was in place for travel to his education setting. Adults’ Care Services knew the consequence of its decision-making. Social Worker Z was told he had to ensure Mr C’s move despite knowing that Mr C had no way of getting to his education placement by public transport. The management of the service considered Mr C could arrange alternative education for himself within a week of the move. This was despite knowing he had an EHC Plan, that stability of education was important to Mr C as was his ability to travel independently to the education placement.
So, the Council again took a decision without taking relevant factors into account. That was a further fault.
The Council was at fault because:
- its adult care service did not take part in decisions around a move back to Devon for Mr C, which it should have done as part of its duty to undertake transition planning;
- Its Children’s services team knew of the need to involve adult care services in decision-making but did not make efforts to engage that service at a senior level when its initial contacts did not result in active engagement;
- Neither service undertook proper transition planning for Mr C;
- Adults’ care services inappropriately sought to end Mr C’s placement at a children’s home on or around his eighteenth birthday; it solely took account of budgetary considerations and not Mr C’s needs;
- It required him to move without reference to the impact that a change in accommodation, and that accommodation’s location, would have on his wellbeing;
- The move took place with Mr C having no means to attend his place of education;
- Its SEN service failed to reply in a timely way to requests made by Mr C’s social worker for advice about home-to-school transport; and
- It did not adequately consult Mr C, nor consider a potential need for advocacy properly before making key decisions about his care.
The Council was told (and it agreed) that it should
- Ensure that it introduces a policy to triage all cases of young people aged 16 and over who are referred to its Adults’ social care department.
- Where assessment for transition is required, a social worker is allocated to begin transition planning for adulthood.
- Where it has not allocated an adult care services social worker, the Council will have a series of trigger dates (for example at three monthly intervals) to ensure these cases are either allocated as soon as practicable or those that cannot be allocated are brought to the attention of senior managers for action;
- Ensure it introduces a procedure (or reminds relevant staff of any existing procedure) for Children’s services to escalate concerns if Adults’ care services are not actively involved in transition planning for any young person aged 17 or over so that no decisions about accommodation for a child beyond their eighteenth birthday or with significant cost implications for the Council should be taken without that involvement;
- Brief all staff and managers involved in transition planning for young adults on the findings of this investigation and the changes being introduced to prevent the same problems from recurring in the future; and
- Review communications between its Adults’ care services transition teams and special educational needs (SEN) services, so that social workers have a designated point of contact where they have enquiries about Education, Health and Care Plans or SEN transport. The Council should also ensure that social workers can escalate concerns to senior officers if they go unanswered.
Points for the public, parents, young people, providers, staff and management – and advocates
Section 58 Transition care planning is not an absolute duty; the council must provide written reasons for not thinking it would serve the individual when requested. That might have been something that Devon thought when Mr C was just 15 but such a stance would not have been unchallengeable in public law terms, as each further year went by. The pandemic was in 2020, which may have slowed progress, but the LGSCO does not mention that.
Transition planning does not amount to a guarantee of Adults’ services. It’s an indication of the likely identification of needs for care and support, likely eligibility and early discussion about what might ensue.
Children’s services do not stop dead at age 18. They continue to be able to be provided until there is a proper decision about needs and eligibility by Adult Services, up to age 25 when any EHCP in force should be brought to an end, compliantly with the law.
There is no doubt that councils can take account of cost; that’s been the law since 1995 and the Care Act made no difference. But having an affordable care policy is unlawful and applying the thinking in it to individuals simply cannot be done unless the staff are clued up about other legal obligations. It’s perfectly legal to move someone (to make the offer of a move, and if the MCA has been followed, to effect that move, physically) but only if it’s an adequate appropriate means to meet the identified eligible needs, and only if the Human Rights Act has been factored in, particularly respect for family life and one’s development. The Care Act requires the suitability of accommodation to be taken into account as part of the promotion of wellbeing and the law on care planning says that if there’s only one way of meeting the needs in the professional opinion of the staff who’ve done the work, then that is what it is the duty of the commissioners to spend, unless their senior management’s own reasoning and work provides an articulated evidence basis for disagreement.
Whilst paragraph 10.27 of the Guidance permits councils to take account of the total costs of various ways of meeting the need, all those variations must at least pass the test of being defensibly beneficial ways of meeting the needs in the first place, underpinned by professional consideration of all relevant considerations. This report is an example of the LGSCO using the complete lack of evidence that the council followed the Care Act as a judicial review judge might well have done – had the matter gone to Court. There’s a fine line between the investigator saying ‘the offer of the package was irrationally inappropriate’ which would be acting as if a council considered x y or z, or did a b or c.’ That latter approach is simply following what the law says must be done, including following the Guidance.
In terms of the stance on Care Act independent advocacy for a transition process under s67, it is specifically covered as a legal entitlement when the conditions for it are acknowledged.
Here, acting as Adults’ Services, we think, the social worker took the view that it was not needed because of Miss B’s support being available. This is very common, and is not a proper application of the rules on Advocacy. It is the position that having an appropriate and willing adult can obviate the need for funded advocacy, but
a) the person with the substantial difficulties must be asked for their consent to informal participation support, even if their parent is willing and able. To give it, it must be the case that the young person is told that they have the choice, and the choice involves an Advocate with some formal qualifications and hopefully (it is not required, please note) some knowledge of the person’s Care Act rights. That involves some knowledge of public law, we have to say.
b) There are exceptions to the rule that a person’s willing and appropriate supporter can excuse the duty: see regulation 4, for instance, about what could and should happen if there is a material disagreement between the aspiring participation supporter and the council.
c) The council may take the view, as long as it is prepared to explain why, and give the person a chance to address its stance, that the aspiring participation supporter is not in fact appropriate, by reason, the Guidance suggests, for example, of entrenchment which renders it impossible that they could be open to constructive debate.
Underfunding Advocacy commissioning, so that the advocates do not feel able to challenge offers of care, using public law principles; and underfunding ongoing Continuing Professional Development for professional staff’s awareness of the law governing their functions is how England has come to work, unfortunately.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Devon County Council (23 001 435) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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