Decision : Not upheld
Decision date : 10 Dec 2018
The Ombudsman's final decision:
Summary: Miss B complained the Council failed to put in place support and transport for her son, delayed completing an occupational therapy referral and wrote to her in a rude and aggressive fashion. I have found no fault by the Council.
- The complainant, whom I shall refer to as Miss B, complained the Council:
- failed to put in place overnight respite from 2014;
- refused to consider providing after school care so she could go back to work;
- refused to cover school transport costs for her son between 2016 and 2017;
- refused to consider providing transport for her son to attend his assessed activities;
- delayed completing an occupational therapy referral for a disabled facilities grant; and
- allowed one if its officers to write to her in a rude and aggressive way.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
- 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
- As part of the investigation, I have:
- considered the complaint and Miss B's comments;
- made enquiries of the Council and considered the comments and documents the Council provided; and
- gave the Council and Miss B an opportunity to comment on my draft decision.
What I found
- The Children Act 1989 requires Councils to safeguard and promote the welfare of children who are in need and so far as possible to promote their upbringing within the family unit by providing services suitable for those children’s needs. A child is in need if he or she is disabled. The Council is required under the Act to undertake an assessment of the child’s needs followed by a decision on whether services are called for to meet them and, if so, how they will be provided.
- School transport law is set out in the Education Act 1996, as amended by the Education and Inspections Act 2006. Schedule 35B of the Act defines eligible children (those who qualify for free transport) as:
- children unable to walk to school by reason of their special educational needs, disability, or mobility problem (including temporary medical conditions);
- children unable to walk in safety to school because of the nature of the route, and;
- children living outside ‘statutory walking distance’, which is two miles for children under eight and three miles for older children. Special rules about distance apply to children from low income families.
- day-time care for disabled children;
- overnight care for disabled children;
- provision which will enable disabled children to participate in educational and recreational activities; and
- emergency care, for example, due to illness in the family.
Chronology of the main events
- Miss B’s son receives a care package from the Council. Since 2014 that has involved support during term time and school holidays as well as 16 overnights per year.
- In May 2014 Miss B asked the Council to reassess her son as she had started work and intended to take on another part-time job. The Council told Miss B it would only carry out a further assessment if the changes meant Miss B’s son’s needs had changed. A review meeting took place on 9 June. Miss B asked the Council whether it would provide more hours for childcare. The Council told Miss B child tax credits could help her with childcare costs. Miss B told the Council she did not intend to claim child tax credits.
- On 18 July 2014 the care provider told the Council Miss B had not used the full package of 11 hours for the whole of the previous year or this year and had instead been using 9 out of the package of 11 hours per week. That prompted the Council to complete a further assessment which reduced the care package by two hours.
- In 2015 Miss B asked for a visit as she had concerns about her son’s care package. When the social worker met with Miss B on 16 March 2015 Miss B told her she had not sent her son on an overnight stay since 14 February due to her concerns. The Council agreed to look at alternative agency provision. The Council also suggested alternative overnight provision but Miss B refused to consider those options. Miss B told the Council she was exploring the possible provision of a disabled facilities grant for an extra room and bathroom downstairs so carers could provide the overnight provision in her home.
- On 17 March the Council provided some information about provision of overnight care from an alternative provider and provided Miss B with a list of agencies on 23 March.
- On 20 April the Council contacted Miss B as it had discovered she had not accessed any of her son’s care hours since 16 March 2015 and had said she no longer wanted her son to attend the provision that was already in place. The Council asked Miss B to contact it to discuss the situation. The Council referred to looking for an alternative agency.
- The Council contacted alternative agencies and told Miss B about that on 22 April. The Council asked Miss B about her availability to visit a new potential provider of overnight care. A visit to one of the providers was arranged for 13 May, although I understand that visit did not take place. Another provider indicated on 21 May it had allocated seven nights respite for Miss B’s son for the year although it still needed to assess him to establish the level of overnight medical support required.
- The Council continued to seek details of other providers. The Council also offered Miss B another appointment to visit one of the potential providers. Miss B agreed to that and I understand she visited the provider and agreed it was suitable. Miss B then visited with her son in August 2015. Following that visit Miss B raised concerns about the suitability of the provision given its distance from her property.
- Miss B visited an alternative provider who could potentially provide outreach during the day on 28 September 2015. Following that visit Miss B asked the Council about what arrangements it would put in place to transport her son from school to the new provider. She also raised concerns about the suitability of the provision. The Council explained because the provision would be outreach support it would not take place in the centre. The Council suggested an alternative provider for overnight stays.
- On 9 November Miss B told the Council she did not want to pursue the outreach provider. The Council therefore contacted four alternative agencies.
- On 11 November a multiagency meeting took place to discuss the proposed overnight provision.
- On 17 November Miss B agreed to outreach during the week at the provider she had visited earlier in the year until it had weekend availability. She said it would need to begin with daytime visits before building up to overnight stays. Miss B and her son visited the provider on 2 December. The provider made arrangements to start overnight stays in January 2016.
- The Council provided Miss B with details of three potential short break providers on 16 December.
- In January 2016 the Council offered Miss B the first overnight stay for her son at the agreed provider. Miss B later said her son could not stay as he was on new medication and needed to complete his physiotherapy.
- On 12 January a multiagency meeting took place. The meeting recorded Miss B did not want overnight breaks during the week. The Council said it had not identified any provision for predominantly weekend care and therefore what was offered was overnight care on alternative Tuesdays and on Sunday night every eight weeks. Miss B reluctantly accepted that. The meeting recorded the only outreach support available was one which Miss B had not agreed.
- The Council provided Miss B with details of another agency that could take on the outreach hours on 27 January and asked for details of her availability to visit. The Council then arranged a visit.
- On 16 February Miss B visited the proposed overnight provision but the visit did not go well.
- On 14 March the Council held a child in need review. The Council again offered an option for weekend respite but Miss B refused.
- On 5 April Miss B asked for details of the after-school provision available and said she needed some after-school provision as well as Saturdays and during holidays. The Council met with Miss B on 13 April to discuss options.
- A multiagency meeting took place on 25 April. Miss B told the meeting she did not consider the proposed overnight respite provider could provide for her son’s needs. The Council told Miss B it could not fund childcare. The Council provided Miss B with details of other activities available during the week and school holidays, which Miss B declined. The Council reminded Miss B it was her responsibility to organise and provide childcare for her son. Miss B asked for transport to and from activities for her son. The Council told Miss B her son could use public transport or the mobility vehicle she had. Miss B said she required the car for work and public transport and taxis were not an option.
- The Council made a referral to occupational therapy on 26 April.
- On 26 April Miss B asked for a reassessment of her son’s care package due to her childcare needs. She also asked to use the unused hours in her son’s care package over the previous 12 months going forward.
- On 10 May Miss B asked why the Council refused to support transport costs for after-school provision/holiday care which involved a round-trip of 35 miles. The Council responded to that on 20 May. The Council explained it did not have a statutory responsibility to provide transport for children to after-school activities. The Council pointed out Miss B had chosen to stop the care package in April 2015 and had refused other services offered to her. The Council told Miss B she could only bank four weeks care hours and that could not be used to fund the transport service alone as that is not what the care package was provided for. The Council provided details of after-school provision and holiday provision within East Lancashire.
- Miss B contacted the Council on 28 June to report her son not sleeping well and presenting with difficult behaviours. The Council reminded Miss B she could still access overnight provision at a provider she had previously refused. The Council also suggested if that was not acceptable she could consider reducing the number of overnight stays and increasing the number of outreach hours to ensure she received some respite.
- The Council completed a reassessment of the care package on 27 July which did not change the provision.
- Miss B asked for direct payments on 28 July. The Council refused that as it had previously withdrawn direct payments due to misuse of funds.
- The Council arranged a daytime care package with a new provider from August 2016.
- In August the Council emailed Miss B to raise concerns about some of her communications with officers. The Council suggested a meeting. Miss B declined and raised a complaint about the tone of the email. The officer that sent the email responded to explain it was not intended as an attack on her and apologised if she felt that way.
- The community nurse raised a safeguarding alert on 29 September when she saw bruising on Miss B’s son’s arm following a seizure at home. He had fallen out of bed as a result. A social worker visited on 30 September and suggested an occupational therapy assessment. Miss B told the social worker her partner intended to buy a new property and an occupational therapy assessment would be required for that property. The Council completed the occupational therapy referral on 6 October. The Council chased that referral on 2 and 6 December. The occupational therapy team told the Council it had asked Miss B son’s consultant for information and was waiting to hear back before it could progress the referral. I understand the occupational therapist received the information from the consultant on 8 December and carried out a visit to Miss B on 28 December. The disabled facilities grant application is a matter the Borough Council dealt with.
- The agency providing some daytime provision to Miss B’s son told the Council in January 2017 it could not reinstate provision until it had met with Miss B to understand her concerns. The Council met with the agency on 8 February and a plan was put in place to restart the provision. However, the care agency served notice on the care package on 31 March as it felt the relationship with Miss B had broken down.
- A social worker met with Miss B on 6 April to discuss alternative providers. Miss B identified a provider she had heard good reports about and the social worker agreed to contact the provider. The Council did that on 10 April. The provider asked for more information about Miss B son’s medical needs on 10 May. On 26 May Miss B’s son’s consultant gave the Council some information about the number of carers needed to be with Miss B’s son.
- The Council carried out a reassessment in June 2017 which did not change the provision. The Council told Miss B if she needed childcare while at work she should claim child tax credits.
- On 27 July the Council told the care agency Miss B had identified it would fund a maximum of 20 miles transport for activities for Miss B’s son. That created an issue because the care agency was not one of the Council’s short break providers and it had therefore not identified staff with business use on their car insurance to enable them to transport Miss B’s son to activities. I understand this meant Miss B transported her son to activities during the summer.
- On 16 August the Council said it would review the respite overnights to be provided within the family home as Miss B was agreeable. The Council invited Miss B’s legal representative to provide any evidence to suggest Miss B’s son was unable to access outreach locally.
- On 24 August the care agency providing some daytime support to Miss B’s son told the Council it had arranged for one of its staff members to have business cover so she could transport Miss B’s son to planned activities. The Council agreed to pay mileage in line with its transport policy.
- On 30 August the Council completed an assessment. The assessment recorded Miss B had asked for activities for her son which were more than 10 miles from his home when the Council had identified local activities. The assessment recorded overnight respite could be provided in the family home.
- The Council identified a care agency to provide overnight respite on 11 September. The Council suggested a meeting to discuss the care plan and to progress the overnight support. That meeting took place on 24 October.
- On 24 January 2018 Miss B asked the Council about the availability of childcare provision because she would not claim tax credits as she was not eligible and had started a new job. The Council asked Miss B for evidence of her ineligibility for child tax credits. The Council told Miss B child tax credits were available for working families with a child in full-time education up to the age of 19. The Council said all employers had a duty of care towards employees with caring responsibilities and were required to make reasonable adjustments.
- On 15 February Miss B asked the Council to fund a taxi so her son could attend an activity in Blackburn. The Council declined as it had provided funding for support staff for Miss B’s son to access community activities locally.
- On 16 February the care agency providing some daytime support told the Council a safeguarding incident was being investigated. The agency did not provide any further care after that date. The Council suggested a meeting but Miss B explained she was busy for the next few months. The Council suggested a direct payment so Miss B could manage the care package and overnight respite but explained she would need to attend a meeting to arrange that.
- The Council met with Miss B on 9 March. Miss B said she had no confidence in agency provision and did not want to discuss another agency. The Council discussed direct payments under a managed bank account and Miss B agreed and asked the Council to set up a meeting.
- On 13 March Miss B requested hardship funding to make up for a shortfall in the disabled facilities grant the Borough Council had offered. An officer met with Miss B to discuss that application on 20 March. The Council asked for more information. The Council told Miss B on 28 May it would fund part of the additional costs. The Council said it would consider covering the remaining shortfall. The Council said to consider that it would need Miss B to provide financial documents to show she could not fund the remaining costs herself. The Council also asked Miss B to explain why she could not use the amount she was contributing for a higher specification kitchen and white goods to cover the remaining amount. The Council told Miss B it would waive the requirement for her to provide evidence of two loan refusals.
- The current position is the Council began direct payments to cover Miss B’s son’s needs on 23 May 2018. Miss B’s son is travelling to and from school in a taxi with Miss B. I understand a tribunal claim has been made which concerns the nature of the personal assistant required to travel with Miss B’s son to and from school. I further understand the Council is awaiting a response from Miss B about the extra funding she needs for the disabled adaptation at her property.
- Miss B says the Council failed to put in place overnight respite care for her son from 2014 onwards. Having considered the documentary evidence I am satisfied each assessment the Council has undertaken since 2014 has awarded 16 overnight stays for respite. That is in addition to 16 overnight stays funded by the NHS. I am satisfied those overnight stays were in place until March 2015. At that point Miss B stopped the overnight stays as she had concerns about the provision, particularly around medication. The evidence I have seen satisfies me the Council has not put in place further overnight respite, with the exception of a few nights in October 2015 when I understand Miss B was in hospital, since March 2015. I am satisfied though this is because the Council has been unable to identify a provider Miss B is happy with. The evidence I have seen satisfies me the Council has suggested several overnight care providers and Miss B has not considered any acceptable. I have seen nothing in the paperwork though to suggest those were inappropriate agencies. Rather, it is Miss B that does not consider them appropriate. It is her right to take that view. However, I cannot say the Council was at fault for failing to put overnight respite in place when I am satisfied it has made many attempts to do so. I therefore have no grounds to criticise it.
- Miss B says the Council refused to put in place childcare to enable her to go back to work. I have carefully considered the documentary records. Those records are not entirely clear. Some of the assessments undertaken indicate Miss B was working part-time. Other assessments say Miss B was working full-time. There are then other assessments which say Miss B is not working. In each case though when Miss B has asked the Council for additional support to enable her to work the Council has advised Miss B about how to claim child tax credits as that would provide 70% of the funding for childcare. I understand Miss B does not want to claim child tax credits. That is Miss B’s right. However, the Council’s assessment process is to establish Miss B’s son’s needs. While I would expect the Council to take into account any needs as a result of the main carer undertaking paid work, I would also expect the Council to consider alternative routes available for Miss B to seek support with childcare. As the Council correctly identified that a claim for child tax credits would produce funding towards childcare I therefore cannot criticise the Council for directing Miss B to that route. There is no duty on the Council to provide childcare. In this case the Council has correctly signposted Miss B to agencies which provide childcare to children with disabilities. The Council has also correctly referred Miss B to the ability to claim child tax credits. I have seen nothing to suggest Miss B provided the Council with evidence to show she is not eligible for them. I therefore have no grounds to criticise the Council.
- Miss B says the Council did not provide home to school transport for her son between 2016 and 2017. The evidence I have seen though satisfies me the Council has provided home to school transport for Miss B’s son throughout that period, with the exception of the start of the new term in September 2016 to 9 October 2016. I am satisfied there was a gap in provision during that period because Miss B had told the Council her son’s medical needs had changed and he needed a medically trained person to administer medication on the transport should he have a seizure. I am satisfied the Council did not put in place support for Miss B’s son to attend school with a medically trained person because it did not have any information from Miss B to support her request. I am also satisfied the Council contacted the consultant involved in Miss B’s son’s care. That consultant said it would not be appropriate for someone to administer medication on the school transport. I do not criticise the Council for not providing transport between September 2016 to 9 October 2016 given the potential safeguarding issue it needed to resolve.
- I recognise that since 10 October 2016 Miss B has had to accompany her son on transport to school with the exception of the period 27 March 2017-29 March 2017 and 10 May 2017-14 February 2018. However, the evidence I have seen satisfies me that is partly due to the difficulties obtaining medical information to support Miss B’s request and partly due to arrangements with alternative agencies breaking down and the Council being unable to identify another agency either willing to take on the contract or being suitable from Miss B’s point of view. As I have found no evidence of fault by the Council causing periods when Miss B’s son did not have suitable transport to school I have no grounds to criticise it.
- Miss B says the Council refused to consider providing transport for her son to attend his assessed activities. Miss B says there are no activities suitable for her son in the local area. Miss B therefore says the Council’s policy of only funding transport for a round-trip of 20 miles is insufficient to allow her son to access suitable activities. The Council’s short breaks policy expects activities to be within five miles of the young person’s home, although the Council will provide transport up to 10 miles each way. The issue is therefore whether there are appropriate activities within 10 miles of Miss B’s home. Miss B says there are not. However, the Council has identified what it considers suitable activities within 10 miles of Miss B’s home. I am aware Miss B says those activities, such as trampolining and bowling, are unsuitable for her son. However, the earlier documentary records show Miss B identified those type of activities as suitable for her son. As I have found nothing in the documentary records to suggest the provision Miss B’s son needs is only available more than 10 miles from his home I cannot criticise the Council for agreeing to fund only activities within 10 miles, in line with its policy. It may well be Miss B prefers activities which are available further away, as is her right. However, there is no requirement for the Council to fund the additional travel. As I am satisfied the Council has declined to extend the transport radius after identifying activities Miss B’s son can take part in within 10 miles of his home I have no grounds to criticise it.
- Miss B says the Council delayed making a referral for a disabled facilities grant. Having considered the documentary evidence it is clear the Council put in referrals in 2016. The issue is therefore whether the Council was at fault in terms of the referrals it put in during April and May 2016 and, if so, whether that delayed the overall occupational therapy assessment. I have not seen a copy of the April 2016 referral the Council completed. I therefore cannot say whether lack of information on the form to identify occupational therapy needs was fault. I have not pursued that point further because I am satisfied the Council made a further referral in May 2016. It is clear from the occupational therapy records Miss B has provided that occupational therapy did not accept the referral at that stage because it considered the needs identified were medical needs rather than occupational therapy needs. I am therefore satisfied it was not a matter of the Council failing to provide the occupational therapist with the relevant information. It follows I could not say failure by the Council caused any delay completing an occupational therapy assessment.
- I am satisfied though the situation had changed significantly by the end of September 2016. By that point Miss B’s son was experiencing more seizures and temporary paralysis. I am satisfied the Council responded appropriately to that by making an occupational therapy referral in October 2016. I recognise there was a delay in occupational therapy visiting to assess Miss B’s son. That visit did not take place until the end of December 2016. However, the Council is not responsible for the occupational therapy service. I therefore cannot criticise it for the delay in occupational therapy carrying out an assessment visit. I recognise there have been significant delays following that visit. However, those delays relate to the occupational therapy team awaiting medical information before completing a recommendation. I am therefore satisfied the Council was not responsible for those delays. Consequently I have no grounds to criticise it.
- I recognise since the occupational therapy recommendations have been made there has been no progress. However, I am satisfied that is due to management of the disabled facilities grant process which falls to the Borough Council, rather than Lancashire County Council.
- There are issues with the provision of a disabled facilities grant to begin the works the occupational therapist has recommended. That is because the Borough Council, which is responsible for the provision of funding, will only fund £40,000 when the overall amount required is almost £50,000. Miss B says the Council has not properly considered her request for additional funding. The starting point here is the Council’s policy and procedural guidance for disabled facilities grant applications. This says the Council can provide top up funding in certain circumstances. To consider an application for top up funding though the Council needs financial information from the person applying for funding, an explanation as to why the person cannot provide the top up funding themselves, evidence of two declined loan applications and evidence of any applications to charitable organisations.
- I am satisfied the Council followed its policy in this case. I say that because I note the Council agreed to cover part of the additional funding required. The Council also agreed to consider covering the remaining funding. The evidence I have seen satisfies me the reason the Council has not agreed the final amount required is because it has asked Miss B for an explanation as to why she cannot fund the additional costs herself as well as a copy of the financial documents to show she could not fund the remaining amount. As that is in accordance with the Council’s policy, I have no grounds to criticise it. I also note following Miss B’s representations the Council has agreed to waive the requirement for two declined loan applications. I welcome that. As I have found no evidence of fault by the Council have no grounds to criticise it.
- Miss B says one of the Council’s officers wrote to her in a rude and aggressive fashion. I believe Miss B is referring here to an email from the service manager in August 2016. In that email he refers to difficulties in the relationship between Miss B and various officers. He also raises concerns about the way in which Miss B communicates with officers. I recognise that email was probably difficult for Miss B to read. However, I do not consider it was rude or aggressive. Rather, the email set out the Council’s concerns about the way Miss B was dealing with officers. I am satisfied the service manager’s comments were based on the documentary records and expressed his view of the nature of the communications between Miss B and Council officers. That is a matter of an officer’s judgement and I do not consider it fault for the officer to raise with Miss B concerns about her communications with officers.
- I have completed my investigation and do not uphold the complaint.
Investigator's decision on behalf of the Ombudsman