Summary: Mrs X complained about the Council’s failure to provide respite care for her disabled child. We found the Council to be at fault because it failed to properly consider the issue. There was also fault with the Council’s complaint handling. To remedy the distress and uncertainty caused by its faults, the Council has agreed to apologise, make a symbolic payment and take action to improve its service.

The complaint

1. Mrs X complains about the Council’s failure to provide respite care to her disabled child. In particular, she complains the Council:
1. made no attempt to secure overnight residential respite, despite her being in crisis; and
2. failed to provide financial support for the residential facility she set up.
2. Mrs X says this has caused significant distress and frustration. She believes her son has been unfairly disadvantaged because of his challenging behaviours.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 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(1), as amended)

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What I have and have not investigated

8. Mrs X complains about the Council’s failure to provide respite care since 2016.
9. The restriction outlined in paragraph four applies to part of this complaint because Mrs X complains about events that took place over a year ago. The Ombudsman has discretion and can disapply this rule if there are good reasons. I have decided not to exercise discretion about what happened between 2016 and September 2022 because I have seen no reason why Mrs X could not have complained sooner.
10. I have investigated what happened from September 2022 to February 2025. This is 12 months before Mrs X first complained to the Council in September 2023. It is also when the Council carried out an assessment where Mrs X referred to overnight respite care.
11. The latter date is when the Ombudsman agreed to investigate the complaint.
12. I have referred to earlier events for contextual reasons only.

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How I considered this complaint

13. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
14. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Duty to safeguard and promote welfare of children in need

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. 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.
17. 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.

Child in Need Plan

18. 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.

Direct Payments

19. 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.

Parent Carers

20. The Children Act 1989 (Schedule 2 paragraph 96)(1)(c)) and Breaks for Carers of Disabled Children Regulations 2011 requires councils to provide a range of services designed to assist family carers of disabled children to continue to provide care, or to do so more effectively, by giving them breaks from caring. These services must include a range of daytime care, overnight care and leisure activities. This range of services must be set out in a ‘short breaks statement’ and include details of any eligibility criteria.

Education, Health and Care Plans

21. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.

Statutory complaints procedures

The three-stage process

22. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail. We also published practitioner guidance on the procedures, setting out our expectations.
23. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigating officer to look into the complaint and an independent person who is responsible for overseeing the investigation and ensuring its independence.

What happened

24. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.

Background information

25. P (who turned 18 in 2024) is a young person with a learning disability and a diagnosis or autistic spectrum disorder. He has significant care and support needs. For several years, the Council funded respite care for 10 hours per week by way of a direct payment. This was to provide a break for Mrs X.
26. In 2016, P was provided with overnight respite care at Centre B. Mrs X says P was provided with excellent care and wanted this to continue.
27. In September 2022, P started attending college three days per week but this ended in November 2023. Tuition was provided at home instead. Mrs X says the Council’s failure to provide educational provision five days per week put an enormous strain on her mental health and over well-being. Whilst appreciative of the daytime respite care funded by the Council, says she needed additional support in the form of overnight respite care. She says she was told in the past there was a long waiting list for Centre B and other similar options would not be available because of P’s challenging behaviour.

Events I have investigated

28. In September 2022, the Council carried out a child and family assessment (the 2022 Assessment). This stated, “the family is managing well at the moment. P has a good team of carers around him”. It went on to say that Mrs X had said things could be improved by, “having overnight support at Centre B”. The assessment stated a review would be carried out in six months. There is no record of this review taking place.
29. In March 2023, Mrs X notified the Council of her intention to rent a property to be used for residential respite care. This was because of the Council’s failure to do so.
30. The Council arranged a meeting with Mrs X to discuss her proposal. The Council’s case notes from the meeting show it had a number of concerns, primarily around the use of P’s benefits to fund the arrangement and P’s capacity to sign a tenancy agreement.
31. The next review of P’s social care needs took place in March 2024, when P turned 18. This was carried out by the adult social care team. P was assessed as having a need for residential respite care. To meet this need, Mrs D received a direct payment to fund two nights of overnight respite per month. Mrs X says she is happy with this arrangement.

The complaint

32. In September and October 2023, Mrs X complained to the Council about several ongoing issues, including lack of respite care. In response, the Council explained there was a two year wait for residential care and because of Y’s age, this would not be possible whilst he was still a child. The Council said the request would be passed onto the adult social care team. Shortly afterwards, Mrs X brought her complaint to the Ombudsman. There was some delay progressing the matter due to lack of clarity about the scope of the complaint and whether it had been considered by the Council to its final second stage. Confusingly, the Council then provided a copy of the stage one complaint dated November 2024, that was identical to the letter it sent Mrs X in December 2023.
33. The Council issued its final response in December 2024.
34. In response to Mrs X’s complaint and the Ombudsman’s enquiries, the Council said:

• its children’s team have no documented requests for overnight residential care;
• the 2022 Assessment did not record a requirement for overnight care;
• Mrs X’s complaint about respite care provision should have been dealt with under the statutory complaints process. This was an error for which the Council apologised and offered £150 recognition of Mrs X’s distress, time and trouble;
• Centre B said it was unable to provide a service to P due to an incident in 2016; and
• there was “no conclusion” to the Council’s concerns raised in 2023 about the residential care facility provided by Mrs X.

Analysis

Respite residential care

35. The records I have seen, contradict what the Council said about there being no documented request for residential care to children’s services. The 2022 Assessment shows it was identified by Mrs X as an area that could be improved upon. Whilst I accept it was not agreed by the Council as a need at that time, there are no records of the matter having been considered by the Council in response to what Mrs X said to the social worker. Because it was a child in need assessment, it should have been reviewed after six months. No such review took place by the children’s services department. The matter was not addressed until 18 months later, when the adult team took over. This was fault.
36. It is not possible for me to say, on balance of probabilities, whether had the Council properly considered and reviewed the 2022 Assessment, the outcome would have been different. But there is uncertainty as to whether it would have. This uncertainty is injustice that requires a remedy (below).

Home-based respite care

37. Mrs X says she was forced to set up the home-based respite care facility because the Council failed to provide appropriate support. This was a course of action Mrs X chose to do, and the Council was not obliged to provide funding in the way she expected.
38. But the records confirm the Council agreed to consider the arrangement and whether any financial support was appropriate. To this end, a meeting took place where Mrs X explained her intentions. The social worker’s case notes identified several areas of concern and further investigation was needed. I have seen no evidence this happened. As confirmed in the Council’s response to the Ombudsman’s enquiries, “no conclusion” was reached. It is not for the Ombudsman to determine whether the Council should have funded the arrangement, but its failure to properly consider it was fault. I am satisfied this caused ongoing frustration and uncertainty to Mrs X. This injustice requires a remedy below.

Complaint handling

39. The law expects Council’s to consider complaints about children’s social services to be dealt with under the statutory procedure described above.
40. In response to the Ombudsman’s enquiry on this issue, the Council accepts its was at fault for processing Mrs X’s complaint about respite care under its corporate complaints procedure.
41. It is important that Mrs X’s complaints about children’s services should have considered under the three stage statutory complaints because it would have provided a proper structure to the complaint handling, with an independent element. It would have ensured that her complaint about respite care was kept separate to her complaints about P’s EHC Plan and special education needs provision. This has caused avoidable confusion and delay both before and after Mrs X brought her complaint to the Ombudsman in late 2023.
42. Whilst I welcome the Council’s acceptance of fault and suggested remedy, I do not consider this is adequate. It is clear the Council’s confusing responses, failure to use the right procedure and considerable delay has caused significant distress, time and trouble. This is reflected by my recommendations to the Council.

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Agreed action

43. Within four weeks from the date of my final decision, the Council has agreed to take the following action.
1. Apologise in writing to Mrs X.
2. Pay Mrs X £1000 as a symbolic payment to acknowledge the impact of the uncertainty caused by the Council’s failure to properly consider Mrs X’s request for support with respite care.
3. Pay Mrs X £500 as a symbolic payment to acknowledge her distress, time and trouble caused by the Council’s failure to manage her complaint properly.
4. By training or other means, take action to ensure relevant complaint handling staff are aware of their responsibilities to identify complaints that should be dealt with under the statutory procedure.
5. Take action to ensure that Children in Need assessments are subject to regular review.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I find fault causing injustice. The Council has agreed to recommendations to take action to remedy the injustice personal injustice to Mrs X and improve its service. On this basis, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman