Summary: Miss D complained about the Council’s failure to provide appropriate social care support for her son. She also complained the Council delayed dealing with her complaint. We find the Council was at fault for its communication with Miss D about whether to reimburse her for the second carer she had employed. The Council has agreed to apologise to Miss D for the injustice caused.

The complaint

1. Miss D complained about the Council’s failure to provide appropriate social care support for her son. She also complained about the change in social workers and the Council’s delay in dealing with her complaint.
2. Miss D says the matter has caused significant distress and upset.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

6. I considered information Miss D submitted with her complaint. I made written enquiries of the Council and considered information it provided in response.
7. Miss D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Child in need

8. Section 17 of the Children Act 1989 states it is the duty of every local authority to safeguard and promote the welfare of children within their area who are in need. A disabled child is a child in need.
9. Local authorities carry out assessments of the needs of the child to determine which services to provide and what action to take. They have a positive duty to take reasonable steps to identify children in need within their area and, when identified, to undertake an assessment of those needs.
10. If a local authority decides the child and/or parent qualifies for services, it may provide the services itself or offer direct payments. Direct payments are monetary payments that are paid to the parent or carer of a disabled child. It enables them to arrange and pay for their own support.

Children’s statutory complaints procedure

11. The Children Act 1989 sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. services. At stage two of the procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review panel to be held.
12. The regulations place a duty on councils to act promptly to ensure the complaint is dealt with as quickly as possible. The Department for Education guidance, Getting the Best from Complaints says:
• The complaint should stake a maximum of 20 working days at stage one.
• The stage two investigation should take a maximum of 65 working days.
• A maximum of 30 working days may be taken to convene and hold a stage three review panel.
13. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless we consider that the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

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What happened

14. Miss D’s son (E) has learning difficulties and complex needs. He is considered a child in need. The Council has been providing support to Miss D and E for several years.
15. In July 2018, the Council agreed to provide 15 hours of support to Miss D and E in the form of direct payments. Miss D appealed the Council’s decision and asked about the possibility of respite through short breaks. Short breaks give the families of children and young people with disabilities a break from their caring responsibilities. The Council did not agree to Miss D’s request.
16. Miss D contacted the Council in April 2019 and repeated her request for respite. The Council agreed to replace the direct payments with a short break for one week in seven at its overnight respite facility.
17. The Council’s respite facility was closed for maintenance until 1 July. Miss D contacted the Council on 11 June and requested an increase in the existing support package (to two-to-one support) until the facility reopened. She said that E’s behaviour was deteriorating, and her mental health was suffering.
18. The Council contacted E’s school and it confirmed he was supervised on a two-to-one basis. The Council decided to increase the direct payments hours to reflect the need for two-to-one supervision from 1 July. The Council subsequently agreed to fund the equivalent of two overnight stays per month as direct payments. The Council said it would stop the direct payments once the overnight short breaks started.
19. Miss D complained to the Council on 9 July. She said she was disappointed it had taken three years to agree to two-to-one support, despite the fact she had made it clear E required two-to-one support in school for several years. She also complained about the change in social workers. Finally, she said she had raised a complaint on 6 June but had not received a response.
20. Miss D said she had been employing a second carer to support E. The Council wrote to her on 17 July and asked for signed timesheets and bank statements to evidence this.
21. The Council contacted Miss D on 12 August to discuss E’s transition to short breaks. E attended two tea visits on 14 and 20 August to introduce him to the facility.
22. Miss D emailed the Council invoices and receipts for the second carer on 3 September. The Council said it would let her know the outcome in due course.
23. The Council issued its stage one response to Miss D’s complaint on 10 September. It agreed there had been several changes in social workers and it apologised for this. It said it could not find any record of her complaint on 6 June. Finally, it said that two-to-one support in school is not evidence of a social care need. It said the additional provision was because E was older, and his behaviour was more challenging. However, there was no justification for backdating any direct payments. It also said it had remedied the delay in starting the short breaks by increasing the provision through direct payments.
24. Miss D was unhappy with the Council’s response and referred her complaint to stage two on 10 September. The Council accepted Miss D’s request for a stage two investigation on 18 September.
25. The Council appointed an Investigating Officer (IO) and Independent person (IP) to investigate Miss D’s complaint. Miss D declined a face-to-face meeting and so the Council agreed her statement of complaint via email. The Council agreed to investigate the following complaints:
1. It had taken too long to provide the appropriate level of support for E, despite his level of need.
2. It had refused to backdate direct payments.
3. It had taken too long to get E’s support package reviewed.
4. It had missed payments in July and August 2019, and they had to be chased.
5. It had failed to respond to a request for support for E when he was not at the overnight facility.
6. There had been repeated changes in social workers.
7. The stage one response to the complaint was not within timescales.
8. It had failed to respond to all her complaints.
26. The Council arranged for E to visit the respite facility after school on 9 and 10 October. However, E refused to get off the school bus. The Council arranged further visits on 19,20,26 and 27 October, but Miss D cancelled the visits.
27. The Council emailed Miss D on 5 November and offered her further dates throughout November and December for E to attend the respite facility and help with his transition to overnight stays. Miss D replied and asked for clarification on whether she had to drop E off, or whether he would go on the school bus. The Council told Miss D to drop E off at first, and then after two days it would look again at him being transported by the school bus.
28. Miss D emailed the Council on 19 November and said E could not attend the visit that day. She asked it to stop all visits until the New Year. She also asked it to come up with a strategy so that E could go directly from school.
29. The IO completed his report and upheld two of Miss D’s complaints. He found:
• There had been several changes in social workers.
• The stage one response was sent after 43 working days. This was significantly outside of timescales.
30. In relation to the other complaints the IO concluded:
• Complaint one – It was out of time as the issues happened before 2017 and it had already been considered by a previous Ombudsman investigation.
• Complaint two – The Council agreed to increase social care support to two-to-one in July 2019 as a goodwill gesture and to acknowledge that Miss D was struggling while waiting for short breaks to start. The expectation was that it would only be for a few weeks until the short breaks could be set up. Therefore, there was no justification to backdate the direct payments prior to 1 July. Although Miss D said she had been employing a second carer, this was without the knowledge of children’s social care services and was not based on an assessed need.
• Complaint three –There was no unreasonable delay in arranging a panel to review the support package.
• Complaint four – The delay in processing the payment for two overnights per month was only eight working days and so was not unreasonable.
• Complaint five – There had been a substantial increase in provision from April 2019. The Council had made it clear to Miss D that direct payments would stop when the short breaks started. As the short breaks had not started, the complaint was based on a hypothetical situation.
• Complaint eight – There was no evidence Miss D’s complaints had not been responded to.
31. The IO recommended for the Council to:
• Apologise to Miss D for the repeated changes in social workers and the failure to respond to her stage one complaint within timescales.
• Consider carrying out a new assessment of E’s needs if it was not possible to start the short breaks package within a reasonable timeframe. This would look at whether the existing support package funded through direct payments needed to be at one-to-one or two-one level.
• Backdate the payment for two-to-one support to 1 July 2019.
32. The IP agreed with the IO’s conclusions and recommendations.
33. The Council provided Miss D with the stage one response on 25 November. It agreed with the IO’s and IP’s conclusions. It apologised for the upset caused because of the faults identified in complaints six and seven. It also said if it was not possible to start the short breaks package within eight weeks of its response, it would arrange a new assessment of E’s needs. Finally, it said it would backdate the direct payments to 1 July 2019.
34. The Council backdated the direct payments on 10 December.
35. Miss D emailed the Council on 16 December and asked for her complaint to be escalated to stage three. She said she had provided the Council with evidence to show E needed a minimum of two-to-one support, and yet it had delayed providing it. She also asked for compensation for the distress and inconvenience it had caused her.
36. The Council arranged for a stage three panel to review Miss D’s complaint on 24 January 2020. Miss D contacted the Council on 23 January and asked to postpone the panel because she had childcare issues. The Council rearranged the panel for 6 March.
37. The panel agreed with the IO’s conclusions. Miss D said the IO’s report for complaint three did not address the period from September 2018. The IO said he had drawn up the statement of complaint from correspondence with Miss D and had taken 11 June 2019 as the start date. The panel supported the IO’s recommendations but said the Council should issue a further letter of apology and pay Miss D compensation for her time and trouble in pursuing the complaint.
38. The Council wrote to Miss D on 23 April. It apologised for the delay in providing its response. It also apologised again for the faults that had been identified. It said it had considered the panel’s findings, and there was no basis for it to pay her compensation.
39. The Council’s respite facility was closed from March 2020 because of the COVID-19 pandemic. The Council met with Miss D on 13 July. It noted that E had not managed to transition to the facility because he refused to get off the school bus on arranged visits. Miss D expressed her concerns about having to support E getting off the bus. The Council explained it was the family’s responsibility to support the transition. Miss D agreed to find childcare for her other son while she was supporting E.
40. E started overnight stays at the respite facility on 5 September.

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Analysis

41. The IO agreed a statement of complaint with Miss D and confirmed her desired outcomes. The investigation took account of evidence from a range of sources and addressed all of Miss D’s complaints in detail. Therefore, my role is to is not to re-investigate the complaint, but to identify any shortcomings in the investigation and the remedy offered.
42. The Council apologised for Miss D for the changes in social workers and the delay in responding to her complaint at stage one. I consider the apology is an appropriate remedy to address Miss D’s injustice for these faults and so I do not recommend anything further.
43. I have looked at whether there were any other delays in responding to Miss D’s complaint. The Council sent its stage two response on 25 November 2019, which was 53 working days after Miss D escalated her complaint to stage two. This is within the extended timeframe of 65 working days for a stage two investigation, and Miss D was aware of this timescale. However, the Council says it issued the response within 25 working days of Miss D agreeing her complaint on 19 October 2019. The guidance defines the start date as the date the complainant asks for a stage two investigation in writing. Miss D did this on 10 September 2019. Therefore, the Council should have been working to the 25-working day deadline from 10 September 2019, not 19 October 2019. However, in this case the delay arose for the need for Miss D to agree her complaint, and not from fault by the Council.
44. The Council arranged a stage three panel within 30 working days of Miss D’s request. Unfortunately, Miss D could not attend and therefore it was rescheduled to 6 March because that was the first date when all attendees were available. As the Council arranged the original panel within the timescales, I do not find fault.
45. Finally, there was a delay of 12 working days of sending the stage three letter to Miss D. The Council apologised for the delay and has explained it was because of the COVID-19 pandemic. I find the Council’s apology appropriate considering the short delay and the challenging circumstances.
46. Miss D says the Council said it would reimburse her the money she paid for a second carer to support E. She says provided it with receipts and invoices, but it changed its mind at the last minute and failed to reimburse her. I have not seen any evidence that the Council agreed it would reimburse Miss D. However, it did ask her for evidence she had paid the carer. When she provided it, it said it would get back to her in due course.
47. When the Council responded to my enquiries, it accepted that inviting Miss D to submit invoices may have created an expectation she would be reimbursed. It also says it failed to get back to her and advise her she would not receive any additional reimbursement. It says it will apologise to Miss D for this.
48. The IO explained in his report that even though Miss D was paying for a second carer, this was without the knowledge or agreement of children’s social care services and was not based on an assessed need. Therefore, I see no justification to ask the Council to reimburse these payments. However, I do consider the Council was at fault for its communication with Miss D on this issue, which has caused her some frustration. I recommend the Council formally apologises to Miss D for this.
49. The Council agreed to reassess E if short breaks had not started by 20 January 2020. The short breaks had not started by this deadline, and the Council failed reassess E. This is fault. However, I do not consider this fault has caused Miss D or E an injustice. The purpose of the reassessment was to consider whether the direct payments should continue at two-to-one support or revert to the one-to-one support. However, the Council has continued to provide Miss D and E with two-to-one support in the form of direct payments. E has been accessing the respite facility since September 2020.

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Agreed action

50. To address the injustice caused by fault, by 10 September 2021 the Council has agreed to:
• Formally apologise to Miss D for the frustration caused by its communication with her about whether she would be reimbursed for the second carer she employed.

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Final decision

51. There was fault by the Council, which caused an injustice to Miss D. The Council has agreed to remedy this injustice and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman