Summary: Mrs X complains about the Council’s handling of her complaints under the statutory children’s complaints process. The Ombudsman finds the Council at fault. He recommends the Council makes a payment and takes action to consider Mrs X’s further complaints in line with the statutory guidance.

The complaint

1. Mrs X complains about the Council’s stage 2 investigation and its refusal to address her new complaints at stage 1 of the statutory children’s complaint process.
2. Mrs X also complains the Council refused to provide records in accordance with the General Data Protection Regulation (“GDPR”). And, that the Council was discriminatory in breach of the Equality Act 2010.

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What I have investigated

3. I have investigated the complaints at paragraph 1. At the end of this decision I have set out why I have not investigated other matters.

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The Ombudsman’s role and powers

4. 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)
5. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
6. 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.
7. 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)

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How I considered this complaint

8. I spoke to Mrs X and the Council. I also reviewed documents provided by Mrs X and the Council. I gave Mrs X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

Statutory children’s complaints process

9. Complaints made by or on behalf of children about council services must follow a three stage statutory complaints procedure: local resolution, investigation and review panel.
10. The Department for Education issues statutory guidance on the procedure, “Getting the best from complaints”. Council can only vary from this guidance in exceptional circumstances. I have referred to the relevant parts below.
11. A council should provide a stage 1 response within 10 working days of receiving a complaint.
12. The council should provide a stage 2 response within 25 working days of receiving a request to go to stage 2. This can be extended to 65 working days by agreement.
13. If a person remains unhappy they can ask for a panel review at stage 3. The panel should meet within 30 working days of the request for a review and provide its report within 5 working days of the meeting.
14. The guidance sets out what may be complained about. It also sets out instances where the procedure need not apply. For instance, it says the complaints procedure does not apply when the same complaint has already been dealt with at all stages of the procedure.

Council policy

15. The Council’s policy “Disabled Children Remit 2011” says the children’s specialist services team (“CSST”) will provide support where a child has a substantial and permanent disability and needs more support than it can provide through mainstream services. Normally children will have a Special Education Needs (“SEN”) statement (now called an Education, Health and Care Plan “EHCP”). Another team will manage those children with mental health issues or needs due to Autism Spectrum Disorder “ASD” who are of mainstream ability.

What happened

16. Mrs X’s son, Y, has Autism and Pathological Demand Avoidance. Mrs X struggled to manage Y’s violent behaviour at home. She asked the Council for a carer’s assessment in January 2017.
17. In February 2017 Y entered hospital on multiple occasions due to attempts to harm himself. The same month the Council completed a Single Assessment and put a Child in Need (“CIN”) plan in place to support the family.
18. In March 2017 the Council refused Mrs X’s request for support from the CSST. It explained this was because Y had ASD, but no EHCP and he was in a mainstream school. The Council offered support from another team but Mrs X felt they were not equipped to deal with the challenges she faced as the parent of a child with a disability.
19. On 8 May 2018 Mrs X complained to the Council about the lack of a carer’s assessment and its failure to follow NICE guidance on autism.
20. On 14 June the Council responded to apologise and offer a carer’s assessment. Mrs X and the Council exchanged further correspondence and in September 2018 Mrs X asked to go to stage 2.
21. The stage 2 investigator contacted Mrs X and they agreed a statement of complaint on 21 December 2018.
22. The stage 2 investigator issued a report on 24 April 2019. I have summarised the outcome as follows:
• Upheld the complaint the Council failed to carry out a carer’s assessment as Mrs X requested in January 2017;
• Upheld the complaint the Council’s explanation for its failure appears fabricated, due to the lack of records;
• Upheld the complaint the Council’s documented reasons for its failure did not comply with the law;
• Not upheld the complaint the Council failed to consider Y’s mental health was linked to his ASD when considering eligibility for support from CSST;
• Upheld the complaint the Council failed to acknowledge its staff members’ lack of awareness of ASD and PDA;
• Upheld the complaint the Council incorrectly said Mrs X declined services when in fact they were not offered;
• Upheld the complaint the Council incorrectly said Mrs X did not want support.
23. The stage 2 investigator recommended the Council provide an apology and take action.
24. In May the Council provided its response to the stage 2 investigation accepting the findings. Of relevance, I note the Council:
• Apologised
• Confirmed it would provide training to staff on parent carer assessments
• Confirmed it would provide training to staff on ASD.
25. On 25 July 2019 Mrs X complained further to the Council. I have summarised her complaints as follows:
• She seeks compensation for its failure to carry out a carer’s assessment. She was the sole carer for 83 weeks to a “suicidal autistic child” with no support despite requesting a carer’s assessment.
• She seeks a stage 3 review on two points:
1. The Council did not follow its policy in deciding Y was not eligible for support from the CSST. The Council’s reasons do not match the wording of the policy;
2. The Council’s policy discriminates against Y who has a disability but no EHCP or specialist schooling.
• The Council’s inaccurate records require correction under the GDPR.
• There are significant events missing from the chronology in the stage 2 report.
• She has new complaints for the Council to consider at stage 1:
1. She questions the supervision of a student social worker;
2. She seeks a copy of its record referring to “deficits in parenting” as the reason for the CIN plan;
3. She considers the Council’s labelling of her as deficient in parenting to be defamatory;
4. The Council should explain the issues with her parenting and provide a copy of the “assessment of parenting issues” referenced in the stage 2 report;
5. There were poor communications around CIN review meetings;
6. The Council delayed in providing documents requested;
7. She questions the need to see Y every 3 weeks under the CIN plan;
8. The Council failed to assess Y for a personal budget for social care;
9. She disputes the social worker’s statement that she was not engaging;
10. The Council failed to provide support once it issued an EHCP in December 2018;
11. The Council was negligent due to staff having no training or knowledge of autism;
12. The Council failed to follow NICE guidelines regarding staff’s knowledge of autism;
13. The Council failed to provide support in March 2019;
14. The Council’s CSST eligibility criteria is discriminatory.
26. The Council responded on 27 August. In summary:
• It accepted and apologised for failing to provide a carer assessment. It did look at the family’s needs under the Single Assessment and it offered a carer assessment on 20 August 2018. That offer remains open. It offers £250 as a goodwill payment.
• It has reviewed its ASD training.
• It offered services though the CIN team rather than the CSST team. There is nothing wrong with it doing so and a Stage 3 review would not change the outcome.
• It cannot amend historical records but it will add a case note to its file with her views.
• It will not raise a new stage 1 complaint because the issues raised are associated with matters it has already addressed and considered.
27. Mrs X contacted the Ombudsman as she remained unhappy with the Council’s handling of the complaint at stage 2 and its refusal to consider her further complaints at stage 1.
28. In response to my enquiries the Council said it considered it unlikely the Ombudsman would find differently to the stage 2 investigator. And, it rejected Mrs X’s request for a stage 1 “because it essentially covered the same ground, albeit from a slightly different angle, as the complaint that it had already accepted the findings of.”

Findings

29. The Council accepts it did not provide a carer assessment in January 2017 as it should have done. This is fault.
30. In considering the injustice to Mrs X, I note I cannot say what support, if any, she would have been offered had the Council completed the carer assessment. I am also mindful the Council offered a carer assessment in June 2018 which Mrs X did not accept. Bearing these points in mind I find Mrs X suffered a loss of opportunity to get support over 18 months due to the Council’s fault. I consider the Council’s offer of £250 to in recognition of this was appropriate and I will recommend the same.
31. The Council can only depart from the statutory children’s complaints procedure in exceptional circumstances. Mrs X remained unhappy with the outcome of one of the complaints not upheld at stage 2 and wanted to go to stage 3. While the Council considered a stage 3 review would not change the outcome, this is not a reason to depart from the statutory procedure. The Council’s refusal to go to stage 3 amounts to fault.
32. Having reviewed the Council’s policy and its reasons for refusing support from the CSST, I note the Council used slightly different wording to the policy. However, I remain satisfied the Council decided in line with its policy. Although Mrs X would interpret or apply the policy differently to the way the Council has, I cannot say the Council’s decision is wrong. Although Mrs X did not have the opportunity to raise this at stage 3, I have now considered this point and I find no fault in the Council’s decision making.
33. In regards to the complaint the Council’s policy is discriminatory, I note the stage 3 review panel only looks at the investigation at stage 2, it does not consider new complaints. I therefore consider it unlikely the stage 3 panel would have considered this point.
34. Given the above, I find the Council’s refusal to go to stage 3 did not cause injustice to Mrs X.
35. Mrs X complains about significant events missing from the chronology in the stage 2 report. However, I consider this did not affect the decision and outcome at stage 2. Therefore, this does not amount to fault causing injustice.
36. Mrs X set out new complaints for the Council to consider at stage 1 but the Council refused as it considered these were effectively the same complaints. I recognise it can be difficult for councils when a complainant raises more issues linked to a previous complaint, but this is not a reason to depart from the statutory complaints procedure.
37. I accept the complaints about staff members lacking awareness of autism was already dealt with at stage 2. However, the other points Mrs X raises are either new complaints or simply queries and requests for information. These are not the same complaints that have already been through the statutory procedure. I therefore consider the Council’s refusal to deal with these matters at stage 1 is fault. Mrs X has been put to time and trouble in complaining to the Ombudsman as a result.

Agreed action

38. To remedy the injustice set out above I recommend the Council carry out the following actions within one month of the date of my decision:
• Pay Mrs X £250 in recognition of the lost opportunity to get support had the Council completed a carer’s assessment;
• Pay Mrs X £100 for the time and trouble in bringing her complaint;
• Respond to the new complaints raised by Mrs X, in her letter of 25 July 2019, at stage 1 of the statutory children’s complaints procedure or; explain why the Council will not do so with reference to the statutory guidance.

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Final decision

39. I find the Council failed to follow the statutory children’s complaints procedure, causing Mrs X injustice. The Council has accepted my recommendations and I have completed my investigation.

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Parts of the complaint that I did not investigate

40. I did not investigate Mrs X’s complaint that the Council breached the GDPR. This is because the Information Commissioner’s Office is the appropriate body to deal with such complaints.
41. I did not investigate Mrs X’s complaint that the Council acted in a discriminatory way or breached the Equality Act 2010. This is because the Equality and Human Rights Commission is the appropriate body to deal with such complaints.

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Investigator's decision on behalf of the Ombudsman