Summary: Mrs X complains about the Council’s decision not to provide an advocate to support her and her child (Child Y) during Child Protection enquiries in 2020. The Council appears at fault for failing to properly consider making this reasonable adjustment to assist Mrs X and for significant delay in responding to her complaint. The Council agrees to apologise and make a payment in recognition of the uncertainty caused to Mrs X and for time and trouble caused by its delay in complaint handling. The Council will also review its procedures and provide guidance to staff on the importance of consistently asking about, recording and implementing reasonable adjustments.

The complaint

1. Mrs X complains about the Council’s decision not to provide an advocate (as a reasonable adjustment) to support her and her child, Child Y, when it made Child Protection enquiries in 2020. Mrs X says she had to incur the expense of hiring her own advocate to help her through the process. She and her daughter have experienced significant trauma and distress, for which Child Y continues to receive council-funded therapy. Mrs X wants the Council to acknowledge the negative impact caused to her and her family by its refusal to reimburse the advocacy costs she has incurred.

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The Ombudsman’s role and powers

2. 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)
3. 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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How I considered this complaint

4. I have spoken to Mrs X and considered the information she has provided in support of her complaints.
5. I have considered the information the Council has provided in response to our enquiries. I have also taken account of guidance provided in our recent Focus Report – Equal Access – Getting it right for people with disabilities (May 2022)
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. Mrs X 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 protection investigations

8. Working Together to Safeguard Children 2018 provides guidance on how councils should protect and support children. The document states that “whenever there is reasonable cause to suspect a child is suffering or likely to suffer significant harm, there should be a strategy discussion.” The purpose of the strategy meeting is to decide a plan of future action to safeguard the child’s welfare.
9. If the strategy discussion concludes the child is at risk of, or has suffered, significant harm the council must carry out a child protection investigation known as a Section 47 enquiry. If the investigation concludes threshold of risk of significant harm is met, the council must then hold an initial child protection conference (ICPC). This is a multi-agency meeting chaired by an independent person. The conference may conclude that the child needs to be placed on a child protection plan in order to protect them from harm. If the threshold for significant harm is not met, but professionals think the child concerned needs additional support from the council, the child may be placed instead on a Child in Need plan.

Reasonable adjustments for people with disabilities

10. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
11. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
12. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services but must think in advance about what disabled people with a range of impairments might reasonably need.
13. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

What happened

14. This chronology covers key events and does not include everything that happened.
15. Mrs X has health conditions which affect her mental health, memory and the speed at which she can process information. She considers this to be a disability under the terms of the Equality Act 2010. Mrs X also shares an inherited health condition with her child, Child Y, which affects their connective tissue. Child Y also has issues with sensory processing, anxiety and other health conditions. Child Y receives support at school through an Education, Health and Care Plan (EHCP).
16. At the end of January 2020, Mrs X requested an assessment of Child Y from the Council’s Children Social Care Team. Mrs X felt Child Y needed further support and was eligible for direct payments. The Council completed its assessment of Child Y from the end of February to the end of March 2020. The assessment included the Council visiting Child Y at home.
17. During the assessment, the Social Worker noted they were unable to establish the extent of Child Y’s needs due to differing accounts from Mrs X and other agencies about Child Y’s health conditions. The Council held a strategy meeting on 25 March 2020 and decided Child Y should be placed on a Child Protection Plan under the category of emotional harm.
18. The Initial Child Protection Conference (ICPC) was held on 1 May 2020. Mrs X attended the conference with her legal representative. At some point just before or following the ICPC, Mrs X asked the ICPC Chair for support from an advocate as a reasonable adjustment while the Child Protection Plan remained in place.
19. The ICPC Chair recorded that they had explained to Mrs X why she did not meet the criteria for an advocate. The Chair noted that Mrs X did not lack capacity to make decisions and speak on behalf of Child Y and herself. The Social Worker allocated to Child Y’s case subsequently advised Mrs X that she did not meet the criteria for advocacy support from the Council’s usual advocacy service provider.
20. Mrs X hired her own advocate and she continued to feel she needed one to help her through the Child Protection process. The advocate attended all Core Group Meetings and Review Child Protection Conferences with Mrs X. The advocate also appears to have provided some support to Child Y and Mrs X outside the Council’s scheduled meetings.
21. The Council met with Mrs X and other agencies on 15 October 2020. It decided there was no longer a need for Child Y to remain on a Child Protection plan. Mrs X declined the Council’s offer to place Child Y on a Child in Need, so it could continue to offer support.

Mrs X’s complaint

22. Mrs X made a complaint to the Council on 29 July 2020 about its decision to place Child Y on a Child Protection plan and its refusal to provide an advocate to support Mrs X and Child Y through the process.
23. The Council responded to Mrs X’s complaint under stage one of its complaint procedure on 26 August 2020. The Council accepted Mrs X had hired an advocate, who had attended all meetings with her during the course of the Child Protection plan. The Council explained it had made enquiries with its usual advocacy provider and been told Mrs X did not meet the criteria for an advocate.
24. Mrs X remained dissatisfied and wrote to the Director of Children Services. She asked the Director for reimbursement of the costs of hiring her own advocate.
25. Mrs X contacted us in November 2021 as she had not received any further response about this matter from the Council since September 2020. We asked the Council to provide Mrs X with its final complaint response, so she could escalate her complaint to us if she remained dissatisfied.
26. The Council wrote to Mrs X on 16 November 2021 to confirm receipt of our request. It committed to providing her with its complaint response by 30 November 2021.
27. Mrs X had to contact the Council on 30 November, 3, 6 and 7 December 2021 to chase its response. The Council apologised for the delay and provided its response under stage one of its complaint process to Mrs X on 10 December 2021. The Council confirmed it did not uphold Mrs X’s complaint because she did not meet the criteria for it to provide her with an advocate under the Care Act 2014.
28. Mrs X asked the Council to escalate her complaint to stage two on the same day. She then provided further comments in reply to the Council’s response on 12 December 2021. The Council responded to Mrs X’s stage two complaint on 31 December 2021. It reiterated its view that Mrs X did not meet the criteria for an advocate.
29. Mrs X brought her complaint back to us at the beginning of January 2022.

Was there fault causing injustice?

30. Although Mrs X was understandably unhappy and concerned at the Council’s decision to place Child Y on a Child Protection plan, she has not asked us to investigate the Council’s handling or decision-making in this respect.
31. Mrs X appears to have notified the Council about her needs from the outset. She highlighted to it that she had trouble with processing information and was concerned she would not be able to fully participate and contribute to the Child Protection process.
32. The Council says its ICPC Chair explained to Mrs X why she did not meet the criteria for an advocate. The Council has only one short note about this. There is no information to show what criteria the ICPC Chair was referring to when they discussed this with Mrs X. The Council says it shared a leaflet setting out the services available from its commissioned provider to Mrs X at the beginning of the Child Protection process. It remains unclear why Mrs X was not referred to this service.
33. The ICPC Chair’s explanation appears to relate to the criteria for providing Independent Mental Capacity Advocates (IMCA) under the Mental Capacity Act 2005. IMCAs are a legal safeguard for people who lack the capacity to make important decisions and are appointed when there is no one independent of services to represent the person.
34. The Council has since told us it did not identify any issues that demonstrated Mrs X’s ability to fully participate in the Child Protection process was disadvantaged by a disability. It has also explained that it considered Child Y’s father (who attended all meetings) and/or Mrs X’s parents could have provided the support she received from the advocate she decided to hire.
35. The legislation that applies to making reasonable adjustments is the Equality Act 2010. The Council was at fault for not having due regard to its duty under this law to remove barriers for disabled people accessing its services. There is no evidence it considered the effect her disability could have on her ability to participate in the ICPC process.
36. If the Council considered Mrs X’s request for an advocate ‘unreasonable’ under the Equality Act 2010 for the reasons it has since provided to us, it should have clearly explained its rationale for reaching this view. Failure to do so was fault and caused Mrs X uncertainty because the reasons given for its refusal were not timely or clear. I have made recommendations to address the impact of the Council’s fault below.
37. In addition, the Council took far too long to respond to Mrs X’s complaints about this issue. Mrs X spent a considerable amount of time chasing the Council’s response and it unnecessarily put her through the first stage of its complaint procedure twice. From the point when Mrs X first made her complaint at the end of July 2020, she has had to wait until the end of December 2021 to receive the Council’s final complaint response. That length of time was unacceptable and caused Mrs X significant injustice.

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Agreed action

38. Within one month of my final decision, the Council has agreed to remedy the injustice caused to Mrs X by the faults set out in paragraphs 32 to 37 above by:

• making an apology to Mrs X; and,
• making a payment of £600 to Mrs X for the uncertainty caused by not clearly explaining its reasons for refusing her requests for a reasonable adjustment and for time and trouble caused by its delay in responding to her complaints.

39. Within three months of the final decision, the Council will:

• review its child protection procedures and forms to ensure parent/carers are asked about reasonable adjustments and that their answers are recorded and acted upon consistently; and,
• provide guidance to relevant staff about the importance of asking about and making reasonable adjustments and complying with the Council’s duties under the Equality Act 2010.

40. The Council should provide us with evidence to show it has completed the above actions.

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Final decision

41. I have completed my investigation and uphold Mrs X’s complaint. The Council’s actions caused Mrs X injustice and it has agreed to take action to remedy this.

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Investigator's decision on behalf of the Ombudsman