frsrdg · GT04JO1 · 2005-12-01 00:00:00 — It will not be possible to implement some of the decisions about the Killingen short-term residential and day-care centre. It will not be possible to implement decisions about personal assistants. On the basis of this memorandum, the Board made the following decision. has decided to make the following savings in the budget for 2004 with the exceptions listed in the paragraph on consequences, items: Help with getting out of bed, postponed or cancelled. Those who can get out of bed themselves can continue to wear pyjamas/nightdresses and dressing gowns. Extended mealtimes when feeding assistance required, where those in need of assistance will be given cold food, one member of the staff to assist with feeding. No extra staff for hospice or terminal care. Savings are to be monitored and reported to each month, both in terms of operational impact and finance. This decision applies from , 2004 until the end of the year. The Parliamentary Ombudsman decided to request a statement from in about whether its decision of 8, 2004, meant that decisions on support as laid down in the Act (2001:453) or measures pursuant to the Act concerning Support and Service for Persons with Certain Functional Impairments (1993:387) previously made by the Board or possibly by a Court of , would not apply or be implemented during the period from , 2004, until the end of the year. If one outcome was that decisions previously made according to the Act or the Act on Support and Service etc. would not apply or be implemented during this period, the Board was also requested to account for the legal considerations that had been made concerning the terms on which it could be decided to amend a beneficial decision by the local authority, (cf. for instance the decision of the Supreme Administrative Court RÅ 2000 ref. 16) or withdraw the benefit. in submitted a response with the following contents. Initially would like to point out that it not only endeavoured to obtain the necessary extra funding from authority but also referred the question of financial savings to decision. The reason for the application by for supplementary funding and its referral of the decision was the impossibility of making savings during the remainder of 2004 that would trim its undertakings to the budget allocated by the Council. In this context it should also be added that in corresponding situations in previous years additional funding has been allocated, from the Councils appropriation for unforeseen expenditure. decision to reject the application for supplementary funding, and in particular the explanation provided that itself had to make the decisions that would enable it to adapt its undertakings to the budget, was seen by the Board as a direct instruction from the Council. In its decision of 8, 2004, intended to adopt a standpoint on the savings indicated as such while at the same time declaring that certain potential consequences had to be avoided. The decision was not, on the other hand, intended to specify in detail how savings were to be made. has subsequently become aware that the contents of the decision in question are unclear and can be contested from a legal perspective. therefore made a new decision on , 2004, revoking the previous decision and making it clear that measures that have been granted to individuals will be implemented according to the current legislation. has also, in accordance with its responsibilities for its undertakings, as laid down in Section 6.7 of the Local Government Act, taken the initiative of requesting the Social Welfare Office to investigate whether individuals have suffered any infringement of their legal rights as a result of the Boards decision and measures adopted by the social Welfare Office during the period , 2004, i.e. the period in which the revoked decision applied. A preliminary conclusion is that the decision had no direct impact except where personal assistants were concerned. For example conditions in the special residential units were not affected. No individual was denied the right to short-term care or day-care facilities. With regard to personal assistants the following can be determined. Four individuals have personal assistance provided in accordance with the Act. Personal assistance is provided for 22 clients by virtue of the Act concerning Support and Service for Persons with Certain Functional Impairments. All those with personal assistance according to the provisions of the Act have been granted 100 hours each. Of those granted personal assistance in accordance with the Act concerning Support and Service etc. 18 clients have been allocated a certain number of hours per year, two clients had hours allocated over a ten month period and two clients for six months. One of the individuals allocated a personal assistant in accordance with the Act was exempted from the decision during this period as he is totally blind and it would have involved serious consequences for him. The same applies to two individuals granted personal assistance pursuant to the Act concerning Support and Service etc. who contacted the social welfare office because they needed help to attend health care facilities. In general, therefore, all those who have contacted the social welfare office or have needed personal assistance for impelling reasons have been exempted from this decision during the period in question. It is not possible, of course, to totally exclude the eventuality that someone who did not contact the local authority may have been affected. But in view of the fact that the decisions apply for a period of one year or in other cases ten or six months and make a large number of hours freely available, there has hopefully been no major infringement of anybodys legal entitlement. The hours allocated have not been lost as a result of the Boards decision and the measures adopted by the Social Welfare Office. A more detailed account of the results of this investigation can be submitted to the Parliamentary Ombudsmen when it has been completed. The adjudication issued on January 13, 2005, by the Parliamentary Ombudsman, , contained the following remarks. Decisions about assistance according to the Act or measures pursuant to the Act concerning Support and Service for Persons with Certain Functional Impairments are made by the board or boards responsible for the social services and support for those with disabilities in a local authority. Appeal may be made against a decision to reject an application for assistance or measures to an administrative court. In cases where the courts grant an appeal, their decisions take immediate effect unless the court has ordered otherwise or a higher instance has issued a restraining order. A financial penalty has to be paid by a local authority that fails to offer assistance as laid down in the Act or the measures enjoined by the Act concerning Support and Service etc. without undue delay to someone whose entitlement has been determined by the decision of a court. The administrative court sets the penalty when an application has been made by a (see Sections 6a6d in Chapter 16 of the Act and Sections 28a28d in the Act concerning Support and Service etc.). There are no regulations on financial penalties in the event of delay in implementing a decision on assistance or measures made by a local authority agency. In this respect, I can refer to a preliminary report issued recently by the inquiry into the implementation of certain beneficial local authority decisions, (SOU 2004:118). The lack of regulations about financial penalties or other sanctions does not of course mean that a local authority is entitled to fail to implement its own decisions on assistance as laid down in the Act, for instance. A decision to grant someone assistance as laid down in the Act or one of the measures provided for in the Act concerning Support and Service etc. constitutes what is known as a beneficial administrative decision. There is no general rule about the circumstances in which an authority can change a decision that has already been made for any reason other than pure oversight. However, one basic condition is that a beneficial decision cannot be changed to the disadvantage of the individual. Exceptions can be made, either if the benefit has been granted subject to withdrawal, or if cogent safety considerations require immediate withdrawal, or if the decision is erroneous because the individual misled the authority. The issue of whether there are other cases in which a decision to award assistance can be altered to the disadvantage of the individual has been dealt with by the Supreme Administrative Court in an adjudication cited in RÅ 2000 ref. 16. This concerned whether a board of social welfare could review and alter to the disadvantage of the beneficiary a decision to provide assistance in the form of domestic help for no fixed term. One of the observations made by the Supreme Administrative Court in its judgment was the following: Entitlement to assistance pursuant to Section 6 of the Act and the statutes referred to there is a benefit that is to be determined, within certain fixed limits, by the maintenance needed by an individual and her or his way of life in other respects. Consideration of the security of the individual provides strong arguments against review of decisions about this kind of assistance to the disadvantage of the beneficiary in any circumstances other than those that generally apply for the reassessment of beneficial decisions. These primarily concern decisions relating to a specific occasion or a specified period. When a decision involves continuous assistance with no fixed time limit there may arise grounds for reassessment that are so compelling for instance if there is a substantial change in the need for assistance that no absolute prohibition of such reassessment should be imposed. However, there can be no question of allowing any changes other than those that could not be taken into account when the original decision was made to justify reassessment. made a decision on 8, 2004, about financial savings. In its response to the Parliamentary Ombudsmen the Board asserts that it intended in this decision to adopt a standpoint on the savings proposed as such and to affirm at the same time that certain potential consequences were to be excepted. According to its written response its intention was not on the other hand for the decision to specify in detail how the savings were to be made. In the decision on savings nothing is said explicitly about any cessation of the implementation of certain decisions. In the light of the points listed in the memorandum on which the decision was based, however, in my opinion the decision can only be interpreted as meaning that the Board was giving the Social Welfare Office the power to terminate in certain cases the implementation of decisions on assistance and other measures. Judging from what has been presented in this case, its staff also interpreted the decision in this way. As the Council had not allocated to the Board sufficient funding to cover the costs of its undertakings, it found itself in a difficult situation. must, of course, adapt its undertakings to the financial limits laid down by the Council. This did not mean, however, that the Board was entitled to make decisions about savings that would have unlawful consequences. Here it must be pointed out that a council may not issue directives or allocate funds in such a way that a board is obliged to disregard the requirements laid down by legislation in any area. As can be seen from the arguments above, in this case there were no legal grounds to enable the Board to prescribe in general that certain decisions on assistance pursuant to the Act or the Act concerning Support and Service etc were no longer to be implemented. Irrespective of how one considers the priorities made by the Board with respect to its undertakings and the possibilities of making savings in various areas, it has nevertheless made a decision with contents that grossly exceeded its powers. The Boards decision on savings was revoked after a short time. It can therefore be assumed that the negative consequences of this decision for the individuals concerned were limited and the Board gave the Social Welfare Office the task of investigating whether any individual had been harmed. In view of this, I find no cause to continue my inquiry but will let the matter rest with the grave criticism implied in my remarks above. When the Social Welfare Office has completed its review of the consequences of the Boards decision to make savings, I would like to receive a copy of its findings. A copy of this adjudication has been sent to the social unit of of , which is responsible for supervising the social services in the county. In a written report submitted to the Parliamentary Ombudsmen on 13, 2005, the Social Welfare Office accounted for its inquiry into whether any individuals had been deprived of their legal entitlements as a result of the Boards decision. This was added to the file on this case. 2.4 After separation the parents were awarded joint custody of their two children. The children lived with their mother, who had a protected identity. The question of whether in the local authority in which the woman resided was entitled not to inform the father that it had decided to initiate an inquiry into the childrens living conditions and K.G. are the parents of two children, M., born in 1991, and N., born in 1993. During the relevant period in this case U.G. was living in and K.G. lived together with the children in . K.G. had been given a protected identity. This meant that U.G. did not know where the children were living. In a case brought before the District Court in , K.G. applied for sole custody of the children. The District Court decided, as provided in the second paragraph of Article 20 of Chapter 6 of the Parental Code, to request information from in the local authority of . The information requested was submitted to the District Court on October 17, 2002. The report contained the following. has requested the local authority in which K.G. resides to provide information as laid down in the second paragraph of Article 20 of Chapter 6 of the Parental Code concerning K.G. [civic registration number and address]. cannot provide information about U.G. as he is not resident in the local authority. Transcript from the social register There are entries concerning K.G. in the social register. An inquiry pursuant to Section 1 of Article 11 in the Act was launched on February 15, 2002, at K.G.s initiative and the purpose of this inquiry was to find out how the children felt after their move to . On February 15, 2002, in received a report from the father stating that he was afraid the children were being ill-treated while in the care of their mother. The inquiry was concluded on 7, 2002, without any action being taken as nothing had come to light to indicate any shortcomings in the way in which M. or N. were treated by their mother K.G. On behalf of the social services [Illegible signature] In the local authority in which K.G. resides Authorised social worker/Family therapist A complaint submitted to the Parliamentary Ombudsmen on , 2002, by U.G. contained criticism of the social authorities in the county of . He questioned the way in which the complaints about the ill-treatment of the children had been dealt with. However, his complaint to the Parliamentary Ombudsmen did not make it clear which social authority or authorities U.G. was dissatisfied with. His complaint was not therefore specific enough to form the basis of any action on the part of the Parliamentary Ombudsmen (Parliamentary Ombudsmens decision, 3, 2002, reg. On January 7, 2003, U.G. submitted a new complaint to the Parliamentary Ombudsmen. It contained the following statement. The reason why it is difficult to be more specific in the complaint against the social authorities is that they are trying to remain anonymous. As is shown by attachment A (the information provided above; Parliamentary Ombudsmans comment) the anonymous social worker confirms that I have made a complaint. Somewhat improbably it is claimed that my ex-wife initiated the launch of the inquiry on the same day!! My complaint was made to the social authorities in but I never received any response from anyone. I received an answer indirectly 10 months later from the District Court in . In view of the information submitted by U.G. in his complaint, in the local authority of was requested to supply what documents on the children it had access to. These revealed that the emergency social services in had received two complaints. The urban borough council had established that K.G. and the children were living in and the papers had therefore been referred to the local authority there. The file on the inquiry into the childrens living conditions was requested from the social welfare office of local authority. The information in the file included the following. On January 16, 2002, K.G. rang the social services. She explained that she might be in need of assistance from the family law section as she had applied for a divorce. During the meeting she had with an official from the social services some time later, K.G. stated that she wanted to start an inquiry into the childrens situation. On February 18, 2002, the social services received the two complaints that had been submitted to the urban borough council of Hyllie in . On February 25, 2002, decided (in a delegated decision) that After receipt of a complaint, an inquiry should be launched as laid down in Section 1 of Article 11 of the Act. One of the actions of the official making this inquiry was to visit K.G.s home. The inquiry was completed on 7, 2002. Under the heading Summary and Assessment it was declared finally that nothing had come to light to suggest that the children were treated badly in their home environment. The statement of the Board, its executive committee, contained the following information. After hearing what the mother has to say on January 22, 2002, and on the recommendation of the social unit of 11, and February 20, an inquiry was opened concerning the children M. and N. The main reason for the inquiry was to find out what the children felt after escaping to and whether any assistance was needed from the social services. The address of the mother and the children was subject to secrecy. All the time during her contact with the social services she was afraid that her address would be disclosed. The obligation to inform the other parent sharing custody was discussed in the consultation group. Initially it was considered that the childrens need of protection outweighed the obligation to inform their father that the inquiry had begun. information later emerged about the endeavours being made by their father, both through his lawyer and on his own account, to establish the girls address. Pressure was placed on the girls during their contacts with their father. The case officer also found out the extent of the conflict between the parents and how the children had become involved in it. was offered an opportunity to comment on this response. The adjudication issued on 4, 2004, by the Parliamentary Ombudsman, , included the following observations. Section 1 of Article 11 of the Act (2001:453) lays down that a board of social welfare is to launch an inquiry without delay into anything that has come to its knowledge either through a complaint or in some other way and which can require action by the board. If an inquiry concerns whether the board should intervene to offer a child protection or support, those affected by the inquiry are to be informed that it has been launched (Third paragraph of Section 2 of Article 1 of the Act). Strict confidentiality applies in the social services to information concerning individuals. The main regulation lays down that secrecy applies in the social services to information about an individuals personal circumstances, unless it is evident that this information may be disclosed without harming any individual or those close to them (Section 4, Chapter 7 of the Secrecy Act (1980:100)). Section 4 of Chapter 14 of the Secrecy Act stipulates that the secrecy afforded for the protection of individuals does not apply to the individuals themselves and may in other respects be waived by them either completely or in part. Secrecy that governs information about minors also applies in relation to their parents or guardians, and this may not be waived if it can be assumed that disclosure by the parents or guardians will cause significant harm for the minor. According to Section 5 of Chapter 14 of the Secrecy Act, confidentiality may not prevent an applicant, complainant or other party to a case or hearing before a court of law or other public authority from access to the documents or other material in a case. Documents and other material may not be disclosed if it is of major importance for the public interest or the interests of any individual that information subject to secrecy in the material is not divulged. In such cases the authority must provide the parties with information about the contents of the material in some other way, in so far as this is required for them to vindicate their rights and this can take place without causing serious damage to the interests the secrecy is intended to protect. The stipulation in the third paragraph of Section 2 of Article 11 of the Act on the requirement to inform those affected of the initiation of an inquiry into the circumstances in which children live had a counterpart in Section 50a of the previous Act (1980:620). When this provision was introduced in the earlier Act, it was stated that the criticism had been expressed that the social services were conducting inquiries behind peoples backs (1996/97:124 p. 109 f.). In the Government it was pointed out that many families did not realise what contact with the social services implied and what it could result in. In addition, it was stated that there should be no doubt that an inquiry was under way and that families should always be informed of the decisions of boards and the intentions underlying the conduct of the inquiry. Information that an inquiry is taking place is, as a rule, to be provided without delay. If parents have joint custody of their child but are not living together, the board is to ensure that both of those with custody are informed of the decision. The way in which the statute is worded does not permit the board to invoke secrecy as a reason for not informing someone with custody that an inquiry has been initiated. The question of secrecy about decisions to launch inquiries was raised some time ago in several private members bills in the Riksdag. In this respect it was proposed that it should be possible for a board of social welfare to conduct an inquiry about the need to intervene to protect or support a child without informing those with custody. pointed out, however, that the regulation in question had been prompted by the criticism that the social services were conducting inquiries behind peoples backs. In the Committees view, concern for the legal rights of individuals should prevent any deviation from the principle that the family must always be informed if an inquiry is taking place (report 2002/03:SoU15 p. The purpose of the inquiry with which this case is concerned seems to have been to determine the views of the children on their move from to and whether the board needed to take any measures on the childrens behalf. When the inquiry was completed one of its conclusions was that nothing had come to light to suggest that there was anything in their environment that was detrimental for the children.