Decision : Upheld
Decision date : 05 Nov 2018
The Ombudsman's final decision:
Summary: Mrs X said the Council failed to put in place the actions agreed following its consideration of her complaint. It also failed to offer a remedy for the complaints it upheld and its complaints handling process was subject to significant delay. There is evidence of fault and the Council has agreed to change its procedures and make a financial remedy.
- Mrs X complained about the standard of service from the Council’s social work team. She says:
- the Council failed to provide care, failed to communicate properly with the family and failed to provide information. She says officers have failed to attend meetings and there was a lack of handover when the professionals dealing with them changed.
- there was a lack of joint working with other professionals
- there was a failure to maintain proper records of meetings and decisions.
- when minutes were taken, they were not provided in a timely manner which prevented the family the opportunity to challenge things or correct errors.
- The Council failed to provide clear care plans regarding Ms X’s children
- The Council failed to adequately assess the needs of Ms X’s children.
- The Council has failed to adequately support the family regarding the safeguarding risk which one of their children posed to the other. It failed to take account of those risk when deciding what support to provide.
- The Council has failed to provide adequate and appropriate support to the family during school holidays.
- A Council officer told Ms X that the Council would finance school bus transport for Ms X’s daughter (because it could not support for her son in the morning while she took her to the station). The Council did not, then, offer this service. It also expected Y’s school transport to come out of his care package.
- An investigation into Ms X’s complaint upheld all but one of her complaints (complaint 7 which was partially upheld). However, Ms X complained to the Ombudsman that little had been done to remedy the problems identified and the problems the investigation identified are continuing.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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.
- 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)
How I considered this complaint
- I considered the information Mrs X submitted with her complaint and the Council’s complaints responses. Another colleague made enquiries with the Council and I assessed its reply. I sent Mrs X and the Council copies of my draft decision and took their comments into account before issuing a decision.
What I found
- Mrs X has two children, a son aged 14 (at the time of her complaint) and a daughter, aged 11. I have referred to Mrs X’s son as Y in this statement and her daughter as Z.
- Y has a diagnosis of autism. Social Services have been involved with supporting the family for a number of years because of his behaviour and the impact of that behaviour on the family, including on Z.
- Both children were considered Children in Need (CIN) by the Council. Therefore the Council accepted Y and Z were ‘unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development’ without Council involvement, or that their ‘health or development is likely to be impaired or further impaired without the provision…of such services’ or because of disability, in accordance with Section 17 of the Children Act 1989.
- Both children have CIN plans and regular CIN meetings.
Mrs X’s complaint
- Mrs X’s complaint concerns various flaws in the way the Council dealt with her and her family.
- The Council considered her complaints through the statutory complaints process. It sent Mrs X its response at stage one on 2 August 2016. Mrs X was dissatisfied and asked the Council to take her complaint to Stage Two.
- The report from the independent investigator is dated 12 May 2017. They upheld all but one of her complaints. I have not repeated the detail of the report here.
- On 17 August 2017, the Council sent a letter of apology to Mrs X acknowledging the faults the investigation found with the Council’s service. It included an action plan stating what it would do in response to the complaint.
- Mrs X complained to the Ombudsman because the Council had not taken appropriate action to address the faults the investigation had identified and some of the same problems were continuing.
- When Mrs X contacted the Ombudsman, it became apparent the Council had not shared a copy of the Stage Two investigation report with her. So, Mrs X was initially unable to see how the investigation had reached its decisions.
Action the Council took following the complaint
- At Stage Two, the matters Mrs X complained of were generally upheld. The Investigating Officer made the following recommendations to the Council. That:
- the complainants and their children be offered an apology for the failings outlined within this report and an explanation.
- adequate and appropriate recording practices are maintained to progress effective case management.
- the Council remind staff of their statutory duties in relation to complaint management, including when concerns are raised by professionals who have an equal right to pursue a complaint under the 2006 Regulations and staff’s responsibility to assist in an investigation when required to do so.
- the Council remind staff of their duty that the safeguarding of children is the responsibility of all professionals.
- the Council take a more robust approach to information sharing and communication between its staff and professionals and with parents including the efficient taking and distribution of minutes.
- staff familiarise themselves with and comply with national and local guidance pertinent to them performing their role and their delegated authorities for decision making.
- decisions regarding a child are recorded on the child’s case file in order to affect a robust audit trail.
- the Council reviews it financial regulations; and,
- the Council review its commissioning practices.
- When the Council apologised to Mrs X, in the light of what the investigating officer had found, it sent her an ‘action plan’, arranged in broad themes, to show what actions it had taken, or would take, subsequent to her complaint.
- However, the Council had not included the actions the Investigating Officer had agreed in relation to the outcomes Mrs X wanted (which did not come under the above, or supplemented what comes above). These actions were:
- The Council to provide an assessment of Y by a Speech and Language Therapist and an Occupational Therapist in relation to his sensory integration (at the time, this was said to be ongoing).
- The Council to provide an explanation about why the family were left without adequate support for a substantial period of time and how this will be improved in the future (this adds to recommendation 1).
- For joint working to improve between statutory agencies (this adds to recommendation 5).
- The Council to give consideration to Y’s fluctuating anxiety and impact of his behaviour within his Child in Need (CIN) plan.
- The Council to ensure that CIN plans are accurate, clear and of value.
- The Council to provide clarification regarding Z’s school transport and the provision of support to Y from 7.30am daily.
- The Council to improve its communication and planning in relation to Y and Z including setting timescales for actions and completing within timescales without needing to be prompted by parents to do so.
- The Council to provide clarification regarding Z’s CIN status and service entitlement.
Themes in the Council’s action plan
Case recording and documentation
- There were a number of recommendations made by the investigating officer about case recording and documentation. The Council’s action plan noted that all members of staff were trained in the use of “Case Store” as part of their induction and Service Standards were in place to record the quality/timeliness and expectations.
- The action plan appeared only to re-iterate what training and service standards already existed at the time of the complaint. However, the investigation clearly found there were multiple instances of a failure to maintain proper records. The investigating officer’s report found documentation was poor, there was inconsistency in case recording, information (relevant emails) was not held on case files and key decisions were not documented. Also, staff told the investigating officer of conversations and meetings held to discuss the case that were not recorded; the two children’s files held contradictory information and pertinent information was not on Z’s file.
- The investigating officer identified specific problems with minuting meetings. The case records supported the view that minutes were not always taken. Some of the minutes had been written by a friend of Mrs X and adopted as official minutes, which was unhelpful. When minutes existed for CIN meetings, there was, on occasion, more than one version in circulation resulting in confusion about what was agreed. The investigation found evidence that minutes were often sent out late and this helped contribute to the actions in this case drifting. This is fault. It caused evident time and trouble to Mrs X trying to work out what had been agreed and what would happen as a result.
- The Council has a ‘quality assurance framework’, which sets out the expectations it has about case recording. The application of the framework to individual social workers is given at induction, then assessed during supervision and supervision notes are audited. The Council says that training events and audit feedback take place as necessary. A recording procedure is important to ensure requirements are clear and auditing checks the procedure is followed. There is no evidence of ongoing Council fault.
- Mrs X was understandably critical of minutes and especially where there were questions about which set of minutes was valid or where information was not recorded. The last set of minutes I have seen were appropriate. In terms of accuracy or omission, Mrs X would be able to comment on them at the time, and at the subsequent meeting, if she thought there were any matters missing or incorrect. There is no evidence of ongoing Council fault. The Council suggests that minutes would, now, be written as a matter of course, and appropriate case recordings made. To emphasize the importance of timeliness, the Council should (in the light of comments made by the investigating officer) change its procedures so minutes and other documents are provided to families within a specified timescale and presented in a consistent style (to make it clear they are formal) and build in time to allow them to be challenged before they are signed off.
- There are Child in Need plans for Y and Z with actions going forward. However, it was not clear why information about Y was written in Z’s meeting notes and vice versa. The Council should also have addressed the issue of the differences between Y and Z’s files. The investigating officer noted ‘the practice of adding information concerning both children to both case files is inconsistent, and in some cases the date of visits and meetings differ on each file…information relating specifically to one child may appear only on the file of the other and …information relating to Z was not located on her file. There appear to be various versions of child in need minutes both in circulation and in the case files, making it difficult to determine which version has been adopted by the Council and which version has been distributed to professionals and parents’. This is fault. To remedy this, the Council should audit Y and Z’s files to ensure the information held on them is correct and complete. It should apologise to Mrs X for the delay in it having done so.
Complaints from professionals
- Y’s headteacher complained to the Council and sent correspondence to the Strategic Manager for the Children in Need Team and the Assistant Director for Safeguarding yet the complaints were not properly investigated.
- The Council now has a Conflict Resolution Policy in place for when there are disagreements between professionals. This encourages quick resolution but acknowledges, at the same time, that quick resolution is not always possible. This is appropriate. There is no evidence of ongoing fault.
- The intention is, clearly, for this policy to resolve any problems going forward. The Council has apologised and acknowledged the headteacher’s views were not advanced as complaints when they should have been. Although this is fault, it does not cause Mrs X injustice as the headteacher may have chosen not to share the outcome with her and the situation for Y and Z may not have changed depending on the views of other professionals involved in decision-making.
Lack of coordination
- The investigation found that although the services provided to the family had been multi-agency, there had been a lack of co-ordination, there was no lead officer and no clear lines of responsibility. As a result, the case drifted, actions were not monitored and this meant there were no clear care plans for the children. The investigating officer said; ‘the absence of prompt minutes compounded the poor coordination and drift’.
- The Council has confirmed there was a lead officer. However, personnel changed frequently. This is often unavoidable although handovers between staff cannot take place properly under those circumstances and this contributed to file ‘drift’. The Council has apologised for this fault, which is appropriate. The Council says it now has a permanent senior management team and the allocated social worker is tasked with making sure actions are identified and completed.
- When Y was sent home from his previous school at short notice, Mrs X, or her husband, often had to change their plans so they could stay at home with him. This is fault. Once the Council identified that the school could not meet Y’s needs, it should have worked with the school to find another as soon as it could. This was made worse by the fact that the care agency could not come early enough in the morning to prepare Y for school and transport was not initially set up causing friction between Y and Z. This is fault and it caused distress to Mrs X. The Council was aware that this care was necessary and the existing agency could not provide it.
- The investigating officer pointed out ‘Due to the lack of quality recording, it can be seen from the chronology that numerous staff have spent many hours trying to determine what agreements, if any, had been made around financial issues and what information, if any had been provided to Mrs X, with resolution of the issues taking several months’. This is fault and it caused time and trouble for Mrs X because she needed to understand what actions the Council was taking.
Staff authority and financial regulations
- The Investigation found that there was a lack of knowledge by Council staff about their own policies, and the delegated authority they had to reach decisions. This led to the family being misinformed about the level of financial assistance they could expect, including on transport to see different schools for Y. A social worker confirmed to the investigation officer that he had agreed to fund transport on the basis that he believed he had a degree of flexibility in how he dealt with the support package. This was not the case. Although the social worker promised a payment would be made, a deposit was paid but not the rest of the amount. Following enquiries, the Council has now made that payment, which is appropriate. If Mrs X believes she has not been fully reimbursed, she should tell the Council. The confusion about what had been agreed (in relation to visits to schools) suggests that the whole amount should be reimbursed if it has not been reimbursed already.
- The Council’s action plan stated its financial regulations were made clear to all staff in April 2017, but the investigation findings indicated that was not the case. The Council is clear that no other financial arrangements have been made that have not been agreed with the relevant Service Manager. It should continue to monitor this. There is no evidence of ongoing Council fault.
- Mrs X disagreed with the finding regarding safeguarding training, which had been partly upheld by the investigating officer. Mrs X said she was generally prepared to attend courses, but as she had relevant experience (she had run courses for parents in the past) it made attendance at every course unnecessary. The Council could not tell me what training it expected her to attend that she did not. It should amend the records to make this clear. Its fault, in failing to acknowledge Mrs X had received appropriate training, caused Mrs X distress.
Support for the family
- Mrs X was given 25 hours of care support for Y but was unclear how it might be used. The Council says it can be used ‘flexibly’ so could be used to purchase respite care or for attendance at youth clubs or other provision.
- However, the care that Y currently receives from a care agency costs more per hour than the hourly rate for direct payments. Mrs X says she cannot ask for any additional care from the care agency because it costs too much. It also means she cannot look for another agency to provide a service to Y because she cannot pay the amount they charge. When Mrs X wants support for Y, the Council must be prepared to pay the higher amount and deduct the time from the 25-hour care package. If Mrs X wants Z to attend an activity (because hours have not been used) then the lower amount would be applicable. This gives Mrs X the flexibility she needs to support both Y and Z.
- If Mrs X needs further information about how she might use the care package, she can ask Y’s social worker.
- The Council’s action plan stated that the action plan and investigation’s findings were sent to the Commissioning Team on 18 August 2017. The commissioning team developed a ‘Special Educational Needs and Disabilities (SEND) Strategy and Delivery Plan’. The Council says: ‘Areas covered in the plan relate to commissioned services, availability and level of expertise. The Council are currently recommissioning all short break services for children with SEND. There has been a full engagement and consultation with children, young people and families’. It is expected that this will help ensure a coordinated response by the Council to those children and families requiring support. The Council should continue to monitor this to ensure it is meeting requirements set out.
- One outcome of the complaint was for the Council to ‘remind staff of their statutory duties in relation to complaint management…and staff’s responsibility to assist in an Investigation when required to do so’. The Council says it discusses complaints with staff as part of the supervision framework and holds staff events (also with teachers) where this information is shared.
- Complaints handling was very delayed, in Mrs X’s case, which was fault. It caused Mrs X time and trouble having to chase the Council for a resolution. The Council should ensure its procedures enable it to meet the statutory deadlines for complaints. The Council should also confirm to investigating officers, and managers responsible for writing adjudication letters, they can and should propose financial remedies (in line with the Ombudsman’s guidance) so complainants do not have to come to the Ombudsman by necessity when this has not been considered.
Themes missing from the Council’s action plan
Assessment of Y by a Speech and Language Therapist and an Occupational Therapist in relation to his sensory integration.
- These assessments should be completed, if they have not been, and the Council should consider how to include the findings into Y’s EHCP.
Providing an explanation about why the family were left without adequate support for a substantial period of time and how this will be improved in the future. The Council to give consideration to Y’s fluctuating anxiety and impact of his behaviour within his Child in Need (CIN) plan. The Council to provide clarification regarding Z’s school transport and the provision of support to Y from 7.30am daily (it should also clarify Y’s transport). The Council to provide clarification regarding Z’s CIN status and service entitlement
- The important aspect of this theme is for the future and, critically, identifying a school that meets Y’s needs. The investigating officer said ‘It is also the view of professionals in both Social Care and Education that a consistent attendance at an appropriate residential place would assist Y and that a 52-week residential placement would not only benefit Y but would also alleviate the risk to his sister but that parents are reluctant to follow this option due to not wanting Z to feel that he is being sent away from the home. However, placing Z in overnight respite, sending her to stay with relatives or to play schemes appears to be something that Z does not want to do. It is a difficult balance to address the needs of both siblings and both professionals and parents have the responsibility to work together to find a balance that works for both of the children’.
- Mrs X has made it clear she is not against a 52-week placement for Y but the Council was inconsistent in what it was looking for (i.e. whether it was looking for a 52 or 38 week placement or a day placement). Due to Y’s needs, Mrs X also had to visit a number of different schools, many of which could not take him. This is fault. The Council should now identify a suitable placement for Y that can meet his needs given the concerns expressed about him staying at his current school.
- The Council should consider Y’s ‘fluctuating anxiety’ within his CIN plan as requested. There is no evidence this has been done, which is fault and the Council should apologise. It says ‘fluctuating anxiety’ is now mentioned in his EHCP.
- The Council has provided clarity on Z’s school transport and the support to Y as well as clarification on Z’s CIN status and service entitlement. It has also explained that school transport for Y should not come out of his care package and if he needs a passenger assistant, that should also not come out of his care package. That school transport did come out of Y’s care package is fault. This has caused Mrs X time and trouble to resolve.
For joint working to improve between statutory agencies.
- This is something that ‘statutory agencies’ also have to be committed to. I cannot investigate this issue further for that reason.
To ensure that CIN plans are accurate, clear and of value.
- The Council has not mentioned this. This is fault. However, there is no injustice to Mrs X as the CIN plans for Y and Z are accurate and clear with steps forward set out.
To improve its communication and planning in relation to Y and Z including setting timescales for actions and completing within timescales without needing to be prompted by parents to do so.
- Mrs X says this failure is ongoing. This is fault and the Council should apologise. I have suggested procedure changes to the Council in relation to when minutes and documentation should be issued and I would urge it to adopt those.
- For the Council to apologise to Mrs X, Y and Z for the fault in this statement where it has not yet done so within one month of the date of my decision.
- For the Council to change its procedures so minutes and other documents are provided to families within a specified timescale and presented in a consistent style within four months of the date of my decision.
- For the Council to audit Y and Z’s files to ensure the information held on them is correct and complete within three months of the date of my decision.
- For the Council to monitor financial arrangements made for children and young people to ensure they adhere to the Council’s existing policy. The Council must also be prepared to pay Mrs X the full cost of care, from a care agency, for the 25 hours flexible package that she has. It should do this within three months of the date of my decision.
- For the Council to reimburse Mrs X for the cost of visiting potential schools for Y (once Mrs X presents it with a list) if it has not done so already. It should do this within two months of Mrs X presenting it with such a list.
- For the Council to monitor its commissioning arrangements to ensure it is meeting the needs of children with SEND within four months of the date of my decision.
- For the Council to ensure it keeps to statutory deadlines in complaints handling and that it issues guidance on remedy to those with responsibility so they can propose remedies without complainants needing to come to the Ombudsman. It should do this within three months of the date of my decision.
- For the Council to make a payment of £300 for distress caused to Mrs X from the identified fault i.e. for the Council’s failure to work with the school to find Y another placement, for failing to identify an agency that could provide early morning care and for failing to recognise that Mrs X had already received training in all necessary areas. It should amend its records accordingly. It should make the payment within three months of the date of my decision.
- For the Council to make a payment of £400 for time and trouble caused to Mrs X by having to work out what had been agreed at meetings and how the situation would be moved forward and for the delays in its complaints handling. It should make the payment within three months of the date of my decision.
- The Council should consider how to include the most recent assessments for speech and language and occupational therapy within Y’s EHCP. It should also identify a suitable placement for Y that can meet his needs and consider Y’s ‘fluctuating anxiety’ within his CIN plan. It should do this within three months of the date of my decision.
- The Council should immediately decide on school transport arrangements for Y. This should not come out of his care package, which it currently does. It should do this within two months of the date of my decision.
- I have not considered Y’s lost education. I consider it would be appropriate for Mrs X to make a complaint to the Council about this given the issues have been ongoing.
- Fault leading to injustice and a remedy has been agreed.
Investigator's decision on behalf of the Ombudsman