Date of decision: 01 November 2024
Summary
Miss X complained that Norfolk County Council refused to fund transport for her adult son to his day centre, made an unqualified decision about a continuing healthcare checklist, and mishandled her complaint.
The Ombudsman closed the case after initial enquiries, finding no fault and identifying a better-placed body to consider the continuing healthcare (CHC) issue.
What happened
Miss X requested Council-funded transport for her adult son, Mr Z, to attend a day centre. The Council refused, citing its adult transport policy: it does not normally fund transport for service users with a Motability vehicle or those attending non-nearest services.
Mr Z had a Motability car. If for whatever reason a person would not use their vehicle, the Council’s policy was to suggest alternatives such as a bus pass or giving up the car for a Mobility Component of the disability benefit instead.
It also noted that funded transport would only be provided to the nearest suitable provision, and Mr Z was not attending that one.
The Council offered to assess the suitability of nearer day services, but Miss X declined and the Council did nothing about that.
Miss X also complained that a Council officer completed a continuing healthcare (CHC) Checklist for Mr Z without appropriate qualifications. [No further detail is provided as to what sort of council officer had done that task].
The Council confirmed that the Integrated Care Board (ICB) had allocated an NHS CHC practitioner to carry out a full reassessment [seemingly a DST mapping exercise as opposed to just a Checklist, but we are not told the outcome.]
Finally, Miss X raised concerns about the Council’s complaint handling.
The Ombudsman reviewed the information provided and applied its Assessment Code, concluding that there was no evidence of fault and that the CHC issue was better placed for review by the ICB.
What was found
The Council assessed Mr Z’s needs and applied its adult transport policy correctly. The Ombudsman found no fault in the decision-making process and noted that it cannot challenge decisions made properly. No breach of statutory duties was identified in relation to transport or process.
Regarding the CHC checklist, the ICB allocated a qualified NHS practitioner to carry out a full reassessment. The Ombudsman considered this an appropriate remedy and advised that further concerns should be directed to the ICB or the Parliamentary and Health Service Ombudsman.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
We can’t understand this decision because other decisions of the Ombudsman in recent months have made it clear that councils cannot have blanket policies regarding the consequences of possessing a Motability Vehicle.
The report says that the policy provided that where an individual has a motability car, it will not provide Council-funded transport.
The Council advised that if the motability car was no longer suitable, Mr Z could have a bus pass or motability payment instead.
The legal position is much more complex than this policy (or the refusal to investigate the complaint) suggests. One is not eligible for a specific service such as transport or day care. One is eligible for help, intervention and funding for unmet eligible needs, where there is no other willing and able (free) informal source of support.
Merely having a Motability Car could mean that one has one’s own means of getting to services, or that possession makes one eligible for local district council subsidised public transport that is suitable and adequate for the journey.
But if the vehicle would have to be driven, then the obvious question arises, who is to do the driving? Nobody can be made to do so, to serve the Council’s own obligations; nor can relatives be assumed to be willing to make themselves available.
If the Motability vehicle is of no use to the individual, then we would be the first to say that it is not a sensible decision on the part of a Benefits Appointee to convert the benefit into a car; the Mobility Component could be received in full instead. But councils are not able to tell members of the public to spend their benefits in particular ways, regarding the meeting of eligible Care Act needs. The component is not able to be taken into account in relation to financial assessment AND finances are not relevant to eligibility decision-making or to care planning.
Councils do have lawful discretion, regarding the characterisation of transport, under the charging regulations, as a ‘non-care’ service – for which they have a legal right to charge full cost, even if it takes someone below the minimum income guarantee; we can only assume that they prefer not to do this for political reasons or that they do not even know the use to which they may put the legal framework under which they are operating, to incentivise people to spend their own money on transporting themselves.
A refusal based solely on policy criteria, like possession of a Motability vehicle or attending a non‑nearest service, should still be supported by evidence that the person can achieve the relevant outcomes without significant impact on wellbeing.
This is the most obvious example of an unlawful decision on the part of the Council that the Ombudsman’s triage system has excluded from its own investigatory decision-making process, compounding the plight of disabled people in council areas with similar policies.
The stance in the policy regarding a decision that the man should not attend the nearest suitable service is not unlawful in and of itself. Choosing to go to a day service that is not the closest suitable one could be a justification for treating the individual as responsible for paying for their own transport there, on the basis that it is a want rather than a need. But such a stance from a parent should lead to the council’s insistence on reassessment because the mother is not simply able to obstruct the son’s legal right to be properly reassessed as to what form of day care would objectively properly meet his need – without any form of lawful authority, even if he lacked capacity to make the decision, and even if she held Appointeeship for his benefits.
Where transport is refused, councils should clearly document the care plan budget sufficiency reasoning, the impact on the person’s wellbeing, and any carer considerations. They should also review the decision if evidence later shows unmet needs linked to day centre attendance.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Norfolk County Council (24 007 323) 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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