Decision Date: 15 November 2024
Summary
The Council was at fault for delay in carrying out a transition assessment for Mr Y from children to adult care services, alongside having incorrectly stopped his direct payments. The Council also failed properly to handle a complaint made by Mr Y’s parents, Mr and Mrs X, causing injustice to the parents and to Mr Y.
What happened
Mr and Mrs X complained that transition planning for their son, Mr Y, was delayed. Mr and Mrs X also made a complaint surrounding the cancellation of Mr Y’s direct payments after turning 18 despite the delay in assessing him for adult social care. They argued that the Council had not provided adequate care for Mr Y, causing distress and placing a significant burden upon Mr and Mrs X.
Mr Y has a severe learning disability and various health conditions, requiring significant care which was provided by Mr and Mrs X. The Council provided direct payments for short breaks for Mr Y when he was a child. A transition assessment was not done when he was 16 despite his situation being flagged up for one by the internal special educational needs panel. [The reason is unclear from the report.]
There was no record to show that the Council ever made a decision as to when the ‘right’ time to carry out Mr Y’s assessment would be.
In November 2022, the Council emailed Mrs X asking her to complete a form by the next day to enable an officer to present Mr Y’s case at a panel to ensure he received correct support after transition. Mrs X told the Council that she did not have time to complete the form and referred the Council to Mr Y’s EHC plan, which contained the necessary information to complete the form (which was an internal form only). The Panel referred Mr Y for a transition assessment in December 2022. [It is unclear exactly when he turned 18 from the report but it was likely in early 2023 and before May 2023, from what can be inferred from the other facts as stated].
The day prior to Mr Y’s 18th birthday, the Council stopped his direct payments. The Council first claimed children’s payments automatically stop when they reach 18 but reinstated the payments a short time later.
The Council began Mr Y’s ‘transition’ assessment 3 months after he turned 18. The Council also completed a continuing health care (CHC) checklist to decide if Mr Y could be referred to the Integrated Care Board (ICB) for a full assessment to determine if he was eligible for CHC funded care. Mr Y’s social worker was absent and the Council could not provide an alternative social worker so the assessment stalled for 6 months. The assessment was completed November 2023.
The ICB decided Mr Y was eligible for CHC funding from November 2023, so it was from then on financially responsible for his care. The ICB had not yet finalised Mr Y’s care package at the time of the report, but issued a proposed care plan for discussion with Mr and Mrs X.
The Council told the Ombudsman that historically there had been delays in referrals for transition assessments, but that it had since carried out work to improve delays in the transition process.
In July 2023, Mr and Mrs X made a complaint to the Council about the delay in assessment. The Council responded simply stating that it had been unable to progress Mr Y’s assessment due to the lack of social worker and that pressures in the operational service meant that it could not offer a replacement. It did reassure the parents that direct payments would continue during this process.
Mr and Mrs X provided evidence that they chased the Council for a response multiple times, the Council responded to Mr and Mrs X by claiming they were chasing the operational team for a response.
What was found
The Ombudsman determined there was no absolute obligation for the Council to carry out Mr Y’s transition assessment when he turned 16 and this is indeed true: there is a discretion in s58 of the Care Act with regard to timing.
Yet, the Council should have made an active decision about when an assessment should be of significant benefit to Mr Y. There was no explanation why there was a wait until November 2022. Hence, there was delay and the Council was found to be at fault.
Mr Y already had an EHC plan, so it was unclear why the transition assessment was not part of Mr Y’s annual reviews. It was not ‘lack of engagement’ on the part of his mother to say that one day’s notice to fill out a form was unreasonable when the information was available in a statutory form elsewhere.
The Council did not start any assessment until May 2023, after Mr Y turned 18. [This would have been a s9 assessment under the Care Act.] The Council then delayed by another 6 months in completing the assessment, which was not a reasonable timescale within the care and support statutory guidance, whatever the service pressures being experienced. Therefore, this was excessive delay and fault.
The ICB proposed plan showed the level of care required for Mr Y was [unsurprisingly if he had been found eligible for adults’ CHC] beyond that which had been provided by children’s services. Even if changes were to be made to that plan, it remained likely that his level of support would be more than what Mr Y had received as an under 18 year old. Mr and Mrs X hence should have received considerably more support between Mr Y’s 18th birthday and November 2023.
It was determined from this that the Council’s omission and fault would have caused significant distress to Mr and Mrs X, whilst Mr Y faced injustice from a lack of additional support that had not suddenly become due on his turning 18.
Mr and Mrs X also claimed the delay led to significantly more social work appointments for Mr Y within a short period of time. The Ombudsman agreed that the delay indeed made the process challenging and stressful for Mr and Mrs X to manage.
The Council was found to be at fault for cancelling Mr Y’s direct payments just before his 18th birthday. According to the Care Act, and all statutory guidance to children’s and adults’ teams, councils should not allow a gap in provision between children’s and adult care services. As the Council did not carry out the transition assessment by the time Mr Y turned 18, they were not entitled to stop the payments. Despite the fact that the Council reinstated payments a few days later, the cancellation would have caused distress to Mr and Mrs X.
The Council claims it has improved its management of the transition process so that late referrals are largely avoided.
The Council was found to be at additional fault for the handling of the complaint itself. Whilst the Council provided evidence to show it responded to the complaint, the response was not sent to the correct email address due to a spelling error. So, Mr and Mrs X did not receive the response.
The Ombudsman determined it was likely that the Council’s complaints monitoring system was inadequate. This was because the Council was seemingly unaware they had sent the stage one response to Mr and Mrs X, chasing the operational service for the response instead. If the Council had realised they sent the initial response, they could have resent it to the correct email address.
Agreed Action:
- A written apology by the Council to Mr and Mrs X for distress and uncertainty caused by their delay in carrying out a transition assessment for Mr Y, wrongly cancelling Mr Y’s payments, and failing to correctly respond to Mr and Mrs X’s complaint.
- A symbolic payment of £1000 from the Council to Mr and Mrs X, in acknowledgement of distress caused.
- A symbolic payment of £1000 from the Council to Mr Y to acknowledge the missed benefit of increased support after his 18th birthday. Such payment should be used to provide the additional support.
- Training to share learning from this complaint with relevant officers, so they are aware of their duty to carry out the transition assessment within a reasonable timescale.
- Reviews of the Council’s procedures for stopping children’s services direct payments when the individual turns 18 to avoid the cancellation of payments in situations where an adult care package is not yet in place.
- A review of the Council’s complaint handling process.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
If adult care and support is not in place when the young person turns 18, the council must continue providing the services under children’s legislation until it is in place or until it decides the young person does not have “eligible needs”. This is all able to be found in s66 of the Care Act. It is explained in the Care and Support Guidance at chapter 16.
16.8 Local authorities must carry out a transition assessment of anyone in the 3 groups when there is significant benefit to the young person or carer in doing so, and if they are likely to have needs for care or support after turning 18. The provisions in the Care Act relating to transition to adult care and support are not only for those who are already receiving children’s services, but for anyone who is likely to have needs for adult care and support after turning 18.
16.9 That a young person or carer is ‘likely to have needs’ means they have any likely appearance of any need for care and support as an adult – not just those needs that will be deemed eligible under the adult statute. It is highly likely that young people and carers who are in receipt of children’s services would be ‘likely to have needs’ in this context, and local authorities should therefore carry out a transition assessment for those who are receiving children’s services as they approach adulthood, so that they have information about what to expect when they become an adult.
16.11 For young people with special educational needs (SEN) who have an Education, Health and Care (EHC) plan under the Children and Families Act, preparation for adulthood must begin from year 9 – see Special Educational needs & Disability (SEND) Code of Practice ‘Preparing for Adulthood’ . The transition assessment should be undertaken as part of one of the annual statutory reviews of the EHC plan, and should inform a plan for the transition from children’s to adult care and support.
16.45 It can be frustrating for children and families who have to attend multiple appointments for assessments, and who have to give out the same information repeatedly. The SEND Code of Practice highlights the importance of the ‘tell us once’ approach to gathering information for assessments and this will be important in other contexts as well. Local authorities should consult with the young person and their family to discuss what arrangements they would prefer for assessments and reviews.
16.62 There is no obligation on local authorities to implement the move from children’s social care to adult care and support as soon as someone turns 18. Very few moves will take place on the day of someone’s 18th birthday. For the most part, the move to adult services begins at the end of a school term or another similar milestone, and in many cases should be a staged process over several months or years.
16.63 In advance of the move taking place, the local authority must decide whether to treat the transition assessment as a needs or carers assessment under the Care Act (for example, an assessment for the adult care and support system as set out in chapter 6). In making this decision the local authority must have regard to when the transition assessment was carried out and whether the person’s circumstances have changed.
16.64 If the local authority will meet the young person’s or carer’s needs under the Care Act after they have turned 18 (based either on the existing transition assessment or a new needs assessment if necessary), the local authority must undertake the care planning process as for other adults – including creating a care and support plan and producing a personal budget as set out in chapters 10 and 11. Local authorities should ensure that this happens early enough that a package of care and support is in place at the time of transition.
Continuity of care after the age of 18
16.67 Young people and their carers have sometimes faced a gap in provision of care and support when they turn 18, and this can be distressing and disruptive to their lives. Local authorities must not allow a gap in care and support when young people and carers move from children’s to adult services.
16.68 If transition assessment and planning is carried out as it should be, there should not be any gap in provision of care and support. However, if adult care and support is not in place on a young person’s 18th birthday, and they or their carer have been receiving services under children’s legislation, the local authority must continue providing services until the relevant steps have been taken, so that there is no gap in provision. The ‘relevant steps’ are if the local authority:
- concludes that the person does not have needs for adult care and support
- concludes that the person does have such needs and begins to meet some or all of them (the local authority will not always meet all of a person’s needs – certain needs are sometimes met by carers or other organisations)
- concludes that the person does have such needs but decides they are not going to meet any of those needs (for instance, because their needs do not meet the eligibility criteria under the Care Act 2014)
16.69 In order to reach such a conclusion, the local authority must have conducted a transition assessment (that they will use as a needs or carers assessment under the adult statute). Where a transition assessment was not conducted and should have been (or where the young person’s circumstances have changed), the local authority must carry out an adult needs or carer’s assessment as described in chapter 6.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s London Borough of Haringey (23 018 546) report.
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