Summary: The complainant was concerned that the Council failed to implement the Complaints Review Panel’s recommendations to carry out fresh assessments of her family’s needs. The Council has carried out these assessments, so we do not find fault on this aspect of the complaint. However, the complainant does not agree with the outcome of these assessments. We find that the Council has not had an opportunity to consider the complainant’s fresh concerns. The Council has agreed to now do so. So, we are closing the complaint.

The complaint

1. The complainant, who I refer to as Mrs X, has been helped to make her complaint by a representative, referred to as Ms B.
2. In 2021, Mrs X complained to the Council through the statutory Children Act 1989 complaints procedure about the lack of appropriate support for her family to meet their needs.
3. Mrs X complained to the Ombudsman that the Council failed to adhere to the recommendations of the Stage 3 Review Panel (the last stage of the statutory procedure) made in March 2022, primarily that there should be further social care assessments and a new care package.
4. Mrs X says that, as a result of the Council’s alleged failures, her children, Child Y (the older child) and Child Z have suffered and are not progressing as well as they could have.
5. In particular, Child Z has been out of secondary school since September 2022. And the full extent of Child Y’s care needs has not been recognised meaning that Mrs X has been caused avoidable distress and time and trouble in trying to meet them. In particular, Child Y’s medical needs means that he requires vigilance, and this is especially difficult at weekends when Mrs X has no support.

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The Ombudsman’s role and powers

6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We cannot question council decisions, properly made, just because a complainant disagrees with them.
7. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended).
8. If we are satisfied with an organisation’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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What I have and have not investigated

9. There was a detailed Stage 2 complaint investigation in 2021 of Mrs X’s situation, and her concern about the lack of coordinated support for her family. Mrs X’s complaints were upheld. I am not reinvestigating Mrs X’s original complaints or considering earlier family assessments.
10. There has been a delay in Mrs X submitting her complaint to us. This is because the Council initially was unwilling to set up a Review Panel, after the Stage 2 investigation, until we asked it to do so. The Review Panel decision was known in March 2022. Mrs X complained to us in early 2023. She says that she did not complain sooner because she was trying to resolve matters. For avoidance of doubt, we have exercised discretion to investigate the implementation of the Review Panel’s recommendations, despite Mrs X’s delay in referring her complaint to us.
11. I am only investigating the implementation of the Review Panel’s recommendation concerning the agreement to complete further assessments (details to follow). I have not investigated the concerns about the outcome of these assessments.
12. I have also not investigated the Review Panel’s recommendation about the Occupational Therapy adaptations because Mrs X says that the necessary works have finally started, and she does not want to pursue a complaint about any delay.
13. In respect of the recommendation about correction to records, this will be considered by the Council once we have concluded our investigation. So, I have not investigated this either.

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How I considered this complaint

14. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X and the representative;
• spoke on the telephone to Mrs X and her representative;
• made enquiries of the Council and considered the comments and documents the Council provided;
• I issued two draft decision statements. I have taken into account the further comments before reaching my final decision.

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What I found

The Children Act 1989

15. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
16. Any service provided by a council in the exercise of their section 17 functions may be provided for the family of a particular child in need, or for any member of their family who lives with them, if it is provided with a view to safeguarding or promoting the child’s welfare (s.17(3)).
17. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in section 2.
18. Services which can be provided under section 2 CSDPA include:

• practical assistance in the home including home based short breaks / respite care;
• recreational / educational facilities including community based short breaks; and
• travel and other assistance.

19. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly. Statutory guidance published in 2018, (Working Together to Safeguard Children), sets out the legislative requirements placed on individual services.

Assessment of need

20. The expectation of ‘Working Together to Safeguard Children’ is that an assessment which identifies significant needs will generally lead to the provision of services, but it is not the case that there is a duty to meet every assessed need. Whether a service is required is dependent on the nature and extent of the need assessed and the consequences of not providing a service. Councils may use eligibility criteria and take into account their available resources when providing services under section 17 of the Children Act.
21. The timeliness of assessment is a critical element, and the maximum timeframe should be no longer than 45 working days from the point of referral. The assessment should consider all the help that the disabled child requires and consider help for the carer to care for the disabled child.
22. Assessments should be needs led rather than dictated by available provision.
23. Section 2 of the Chronically Sick and Disabled Persons Act 1970 sets out a wide range of services a disabled child might need including practical assistance in the home, domiciliary care including short breaks in the home and recreational facilities/outings (which would encompass community short breaks). A council should decide whether it is ‘necessary’ to provide services under Section 2 after carrying out an assessment.
24. If a council is satisfied it is ‘necessary’ to provide support services under section 2 of the CSDPA then services must be provided regardless of the council’s resources.
25. Continuing care is required where a child or young person has needs which cannot be met by existing universal or specialist services alone. The care is arranged and funded by the NHS.

Parent carers

26. The Breaks for Carers of Disabled Children Regulations 2011 (the Regulations) requires councils to provide, so far as reasonably practicable, a range of services, which are sufficient to assist carers to continue to provide care or to do so more effectively.
27. The Regulations say a council must ‘have regard’ to the needs of those carers who would be able to provide care for their disabled child more effectively if breaks from caring were given to allow them to:
• undertake education, training or any regular leisure activity
• meet the needs of other children in the family more effectively, or
• carry out day to day tasks which they must perform in order to run their household.
28. Short breaks are part of a range of services to support children in need and include the provision of day, evening, overnight or weekend activities for a child in the child’s own home or in residential care.

Direct payments

29. In 2000, the direct payment scheme was extended to disabled children by way of an amendment to the Children Act 1989.
30. Parents/carers of disabled children can ask for a direct payment (DP) to meet the needs of the child. The council must carry out an assessment and DPs must be sufficient to meet the assessed needs. DPs must be used by the parent/carer to meet the child’s needs. DPs do not affect any benefit entitlement.
31. Persons receiving DPs must agree to DPs and keep and submit accounts.

Special Educational Needs (SEN)

32. The Children and Families Act 2014 introduced new ways to meet the special educational needs, health and care needs of pupils aged 0-25. Councils and their partner agencies will issue an Education, Health and Care (EHC) Plan with different sections setting out a child’s special educational needs (section F), their health needs (section G) and social care needs (section H), and how to meet these.
33. The EHC process requires a council to assess the social care needs in conjunction with carrying out an EHC needs assessment to identify any social care provision which should be treated as special educational needs provision.

The Council’s procedures for disabled children

34. The Council has a disabled children’s team. There are eligibility criteria to receive a service from this team.
35. The Council says that the 0-25 disabled children’s social care team is a specialist team and the fact that a child has a disability or impairment does not necessarily mean that a service will be provided by this team. The use of universal or targeted services should always be considered and explored initially as the way to meet the needs of a child and family.
36. The child must have a severe, substantial and permanent disability and, if of school age, an Education, Health and Care Plan (unless there are exceptional circumstances).

Background events

37. Mrs X and her husband are separated but Mr X continues to help with Child Y and Child Z. Mrs X has severe needs, requiring help with personal care and with managing the children and household tasks. Mrs X is often in pain and has limited mobility. Adult Services provide support to her to meet her personal and household needs and has done so since April 2022.
38. Mrs X has three children, the eldest lives with her ex-husband. Child Y and Child Z were considered children in need, and they have been subject to regular reviews. Mrs X says that all three children have significant difficulties.
39. I understand that the Council now consider that Child Y’s and Child Z’s needs can be met through targeted and universal services. Mrs X does not agree that this is appropriate.

Complaints Review Panel’s recommendations of March 2022

1. that there should be a red flag on the file saying no assessments should be finalised until Mrs X had commented. Mrs X says that this has not happened and her amendments to assessments not made;
2. that the whole network should be considered to support the family;
3. that consideration be given for the children to have an advocate;
4. there should be a single point of contact; and
5. allow Child Z access to the 0-25 team.

What happened

40. In April 2022, the Council completed a detailed parent carer assessment, as recommended by the Review Panel, and there were further assessments in November 2022, January and May 2023.
41. The April and November 2022 assessments listed Mrs X’s health conditions and difficulties in managing her own needs and that of her family. It was agreed that Mrs X would receive direct payments with an indicative budget of £468.72 per week. The care package was to be provided by an adult provider and a children services provider. It involved 17 hours during the week and 4 hours at weekends.
42. Child Y is diagnosed with a range of medical disorders which significantly impact on his ability to manage. His organisational and self-help skills are a significant concern, he has seizures, he has poor muscle strength and visual processing difficulties. He has speech difficulties and can display extreme distress behaviours and needs constant supervision to keep him safe.
43. Child Y has an EHC Plan. He attends a special secondary school resource base where the reports say he has settled well. I understand Mrs X was acting as the escort in the taxi taking him to school. I am not clear what the current transport arrangements are.
44. There was an annual review in May 2023 which has indicated that Child Y’s risks are increasing as he becomes older.
45. Child Z has now been assessed for an EHC Plan, and a final Plan was issued in November 2023, naming Child Z’s current secondary mainstream school with additional funding and one to one support. Child Z has been diagnosed with high levels of anxiety, emotional based school avoidance (EBSA), severe communication difficulties and is on the pathway for an autism assessment.
46. The final EHC Plan states that, after receiving a social care update, the family ‘are in crisis’. There are no identified social care needs identified in Child Z’s EHC Plan (under Section H) except to say the family is being supported by a local organisation. But there are no details of this support.
47. I understand that Child Z is still having problems with attending school.
48. Mrs X says that the care package, which came about because of the Review Panel’s recommendations for assessments, is not working well. She has now provided additional information about why this is the case. She says that the three providers suggested, who provide holiday activities, after school clubs and weekend services cannot be used by Child Y, because he needs one to one support. And the provider, who might have been able to provide this, has said that Child Y’s risks are too high to be able to offer its services.
49. Mrs X has provided further information about her concerns which she has agreed can be sent directly to the Council.
50. The Council says that in March 2022 a flag was added to Mrs X’s files, and those of the children, to say all assessments should not be finalised until Mrs X has commented and her views added where required. Mrs X complains that her amendments were not added.
51. The Council says that Mrs X has a single point of contact, namely the Service Manager, and there is an open-door policy.
52. In respect of the children, the Council says that their needs can be met through universal and targeted services. It considers that both children do not meet the eligibility criteria for services from the 0-25 team. And their child in need plans have come to an end.

Analysis

53. It seems that the Council has implemented the Review Panel’s recommendations for further assessments, and the other recommendations, and, on that basis, my view remains that there is no fault.
54. But Mrs X is now saying that the assessments and subsequent care package, which came about because of the Review Panel’s recommendations, is not working. The Council has said it is not clear why Mrs X considers this. Mrs X has now provided more detail as to why this is the case.
55. It is clear that Mrs X has significant needs which makes it difficult for her to care for her children. Her current concern is that the Council is not recognising or looking at the family in a holistic way or appreciating the full impact of the combination of her and her children’s difficulties, particularly as they grow older. And, the providers suggested to her, are not able to help.
56. Child Y’s and Child Z’s complex needs are recognised as set out in their EHC Plans naming appropriate educational support and provision. It is also clear that both are children in need because of their disabilities.
57. It is not clear to me why children’s social care is not currently involved or, as far as I can ascertain, any social care provision is set out in their EHC Plans, especially when there is a reference to the ‘family being in crisis’.

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Final decision

58. My view is that the Council has implemented the Review Panel’s recommendations. So, there is no fault.
59. However, I am not in a position to comment on Mrs X’s concern that the subsequent care package for the children is insufficient. Also, the Council has not had an opportunity to consider Mrs X’s new concerns, and my view is that this is a new complaint which has arisen subsequent to the Review Panel’s recommendations.
60. The Council has agreed to consider Mrs X’s continued concerns in a way which it considers appropriate (having discussed this with the complainant), and which may lead to fresh assessments of the children’s needs and a parent/carers’ assessment to address Mrs X’s fresh concerns.
61. I have therefore completed my investigation and am closing the complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman