London Borough of Hackney (17 017 581)

Category : Children's care services > Disabled children

Decision : Upheld

Decision date : 19 Dec 2018

The Ombudsman's final decision:

Summary: Ms X complained the Council’s short break service failed to respond appropriately to her request for direct payments to support her family and son. The Council failed to provide her with timely and appropriate support. The Council has acted appropriately to recommendations from the statutory children’s complaint investigation into this complaint. The Council has agreed to provide the Ombudsman and Ms X with a summary of the outcome of its still ongoing review into services for disabled children once this is complete.

The complaint

  1. Ms X complains about failures in the Council’s short break service and its policies, advice and decisions concerning direct payments that affected her and her son.
  2. The Council investigated these complaints through the statutory children’s complaint procedure. This investigation upheld her complaints and recommended actions for the Council. Ms X complains the Council has not implemented agreed actions for improvement arising from this investigation. The investigation revealed systemic failings in the Council’s approach which affected Ms X and are therefore likely to affect other people.
  3. Ms X wants the Council to backdate payment for support that it should have provided, allow her to keep payments she was unable to use directly and improve policy and practice to prevent reoccurrence of its faults.

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The Ombudsman’s role and powers

  1. 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)
  2. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
  3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  4. 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)

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How I considered this complaint

  1. I considered information provided by Ms X and gave her a summary of my understanding of her complaint with an opportunity to comment on this.
  2. I wrote to the Council about the complaint and considered its reply to my enquiries.
  3. I considered the Children Act 1989 and Short Breaks Statutory Guidance on how to safeguard and promote the welfare of disabled children using short breaks.
  4. I considered the Ombudsman’s guidance on remedies.
  5. 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.
  6. I gave the Council and Ms X the opportunity to comment on my draft decision. I considered the Council’s comments before making my final decision.

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What I found

  1. The Children Act 1989 gives councils powers and duties to provide support services for children in need and their families.
  2. These services can include offering short breaks to families either in their home or in a residential or community setting. Short breaks help the child by involving them in activity and the family by giving them a break from caring.
  3. Councils can provide short breaks through use of their powers under:
    • Section 17 of the 1989 Act, giving them power to provide accommodation as part of a range of services to safeguard and promote the welfare of children in need.
    • Section 20(4) of the 1989 Act giving them power to provide accommodation for any child in their area if it helps safeguard or promote their welfare.
  4. Statutory guidance says councils should always be clear about the legal basis on which they provide short breaks. Their decision should be informed by their assessment of the child’s needs and take account of parenting capacity and wider family and environmental factors, the wishes and feelings of the child and the nature of the service.
  5. The guidance goes on to emphasise the importance of a careful assessment of the child and family’s needs before making a decision about providing short breaks.
  6. Statutory guidance says that families with disabled children can ask a council for direct payments in relation to short breaks, rather than having to use a service it provides or commissions. They can then use the payments to buy short breaks from a registered provider or employ a personal assistant to provide them. Guidance does not refer to any age restrictions on this opportunity.

Background

  1. Ms X and her family applied to the Council for support from its short breaks programme in May 2016 to help care for their son Z who has health and care needs. She asked the Council for direct payments so she could pay a teaching assistant. She wanted the person to help take Z out on activities when he was well and, at other times, to support the family.
  2. She continued to chase up and remind the Council about her application until it replied in August 2016, offering support at a nursery that the family did not feel met their needs.
  3. Ms X contacted the Council’s First Access Screening Team in September to request an assessment of Z’s needs. The Team referred the case to the Disabled Children’s Service for a Children and Family Assessment.
  4. Ms X complained to the Council in October about delays and poor communication. The Council replied at stage one of the corporate complaint process in December 2016.
  5. Ms X then asked for the complaint to be taken through the Children’s Statutory Complaint process. She complained that the Council had:
        1. refused to offer a direct payment
        2. failed to deal with her application in a reasonable time.
        3. given the family incorrect advice.
        4. refused to offer an assessment.
        5. decided Z was “not profoundly disabled” without meeting him or considering relevant medical reports.
  6. Ms X also complained the Council’s website contained incorrect information.
  7. Whilst the stage two complaint investigation was taking place, in March 2017 the Disabled Children’s Care Panel agreed three hours per week of social activities for Z through direct payments. However the Council did not make payments until the stage 2 investigating officer chased these up in June.

Stage 2 findings

  1. The Stage 2 investigation reported in July 2017. The findings were as follows:
    • It upheld complaint 1. Ms X’s request for direct payments was in line with statutory guidance and should therefore have been agreed by the Council. The Council had since agreed direct payments of 3 hours per week. It should now urgently act on this agreement.
    • It upheld complaint 2. The Council had already accepted information on its website about the short break service was misleading and this had since been rectified.
    • It upheld complaint 3. The Council had significantly delayed consideration of Ms X’s application for direct payments. It had taken 13 months from the original application to make payments.
    • It upheld complaint 4. The Council had given Ms X advice using the guidance it had in place at the time. This was to offer nursery provision for under 5s, rather than allowing use of direct payments. This was not in line with statutory guidance and its expectation that councils should offer direct payments where requested.
    • It partially upheld complaint 5. The Council had explained it did not carry out assessments to access its short breaks service. This was because of user feedback asking for fewer assessments. Although it had not refused an assessment for Ms X it had unreasonably delayed this and the family experienced this as if it were a refusal.
    • It could not reach a finding on complaint 6. Although the Council had questioned Z’s disability there was no evidence about whether it had said he was not profoundly disabled.
  2. The stage 2 investigation recommended the Council:
    • Inform parents at the outset of the short break application process that direct payments are an option.
    • Change its practice to offer a social care assessment to families who request this.
    • Review how it communicates with families that do not have access to the internet.
    • Clearly display its criteria for carrying out social care assessments and direct families to this information when undergoing assessments.
    • Give more clarity about complaints to indicate which will be considered under the statutory children’s complaints process as opposed to the corporate complaints procedures. Give staff appropriate training to improve practice.
    • Agree clear timescales and oversight for dealing with short break applications.
    • Share learning from the investigation to all staff involved in this area.
  3. Ms X asked that the Council make a financial contribution to a children’s charity in recognition of its mistakes. The investigating officer did not agree because this was using public money and so other families would lose out.
  4. The Independent Person appointed for the stage 2 investigation supported these recommendations.
  5. The Council’s adjudication letter in August 2017 agreed each of the recommendations from the stage 2 investigation. It also offered Ms X a financial remedy of £300 to remedy distress caused by the delays.
  6. It summarised actions and plans to carry out the recommendations. It also offered Ms X the option to ask for a stage 3 panel review.
  7. Ms X asked for her complaint to be considered at Stage 3 in September. Ms X did not hear back and contacted the Ombudsman in December. As well as not taking her complaint to stage 3 she complained it had not carried out the recommendations, and the short break service was still unacceptable. It was not offering direct payments for under 5s as required by statutory guidance.
  8. After contact from the Ombudsman, the Council agreed to consider Ms X’s complaint at Stage 3. The Council held a stage 3 panel in May 2018 without Ms X present. It said this was because she could not agree on a date. She raised a number of points with the Council beforehand and it considered these in its response. The Council took until June 2018 to issue an adjudication letter because of staff illness.
  9. The Council’s adjudication letter explained the panel had reconsidered the only part of Ms X’s complaint not fully upheld at stage 2, complaint 5 – refusal to offer an assessment. The panel decided to now fully uphold this complaint. It decided the time and trouble Ms X had to go to before getting an assessment was the same as if the Council had refused to carry this out. It apologised for its below standard service and the frustration this caused.
  10. The Council explained its actions and intentions:
    • It had reviewed its approach for under 5s. It would further review its duty to assess disabled children under section 17 of the Children Act.
    • It could not put all information on the front page of its website. It was reviewing this but was satisfied information was up to date and accessible.
    • It would review its position about how universal services could be accessed to support disabled children.
    • It apologised for the lateness of confirming its 2017-2018 offer for under 5s.
    • It had not considered the complaint using the correct Children Act process until Ms X raised concerns. It apologised for the further delays at Stage 3.
    • It would make staff aware of the need to alert families that direct payments could be accessed if the assessment recommended this provision.
    • It would continue to offer the unassessed short break service provision because of positive parent feedback. It would do more to explain referral to other options.
    • It would work with advocacy organisations to help families not able to access the internet.
    • A new flowchart explained the criteria for starting a social care assessment.
    • It would improve working across teams on complaint handling by producing a clear, written procedure.
    • It would audit timescales and oversight of processing short break applications.
    • It would share learning from the case to relevant staff.
  11. The Council offered an additional £200 for delay in receiving the adjudication of the Stage 3 complaint, on top of the £300 offered at Stage 2. It offered to send Ms X copies of any new documentation produced as a result of the review.
  12. Ms X then resubmitted her complaint to the Ombudsman. She said the Council had still not implemented all the recommendations from the Stage 2 investigation, causing the same problems for other families. She said its short break policy for under 5s was still discriminating on the basis of age rather than need. Its approach was insufficiently flexible and its offer for assessments was only in exceptional circumstances.
  13. Ms X pointed out the Council’s website still referred to short breaks as being for children from 5-17 and that provision for under 5s referred to nursery and childminding. The website still stated that children between the ages of 3-4 years could only access a one off payment of £200 per year in exceptional cases to pay for a carer or age appropriate service.

Council response to my enquiries

  1. The Council confirmed that, as a result of the investigation, it was still completing its comprehensive review of disabled children’s services. This would be completed at the end of December 2018. The review was considering:
    • Whether the division in short break services for under and over 5s fully met their needs and was lawful.
    • Whether the relationship between applications for short break service and care assessments was clear enough.
  2. It said direct payments were available for under 5s if the child was eligible for a care package, having been assessed under section 17 of the Children Act. It also operated a ‘short break lite’ service that did not offer direct payments. This was because the ‘lite’ service was designed to be administratively simple and avoid the need for parents to become employers which would be required if they wanted to use direct payments to pay for a carer. The Council said this was what user groups had asked it for through consultation.
  3. Under the ‘short break lite’ service the Council allocated hours available for each family using criteria it reviewed each year. Families could use hours with an approved provider or as a lump sum using a prepaid card.
  4. The Council said it now set out timescales for processing applications on its website and monitored this. It would review this again in February 2019.
  5. The Council had reviewed the clarity of information it provided for service users and would do so again in February 2019.
  6. It understood Ms X and family moved out of the country in June 2018 and so their eligibility for provision ended at that time.

My findings

  1. The Stage 2 investigation appropriately and comprehensively considered Ms X’s complaints and upheld almost all of them. The Council agreed to carry out each of the recommendations from that investigation. The Stage 3 panel upheld the remaining recommendation from that investigation.
  2. The Council, in its Stage 2 and 3 adjudication letters set out its actions to address the recommendations from the investigation. The Council’s website and short break statement now sets out a short breaks pathway for children under 5 years old. It has also explained its ongoing review is considering the lawfulness of this matter further.
  3. It is important that Ms X can see the impact her complaint has had on improvement. The Council should therefore provide the Ombudsman and Ms X with a summary of the outcome of that review as it relates to the service complained about.
  4. The Ombudsman cannot make findings on whether council’s actions are lawful. That is a matter for the courts. In this case the Council has explained it is reviewing this matter and expects to conclude its review at the end of December 2018. This is an appropriate course of action.
  5. The stage 2 investigation found evidence of significant delays and confusion in dealing with Ms X’s application. The investigating officer did not recommend back payment to Ms X, or a financial remedy. Subsequent Council adjudication letters at stage 3 offered Ms X £500 as a financial remedy for distress caused by the identified faults. This is an appropriate remedy for frustration and distress caused by delays both in the Council’s processing of the application and in its subsequent complaint handling. I have therefore not recommended a further financial remedy.

Agreed action

  1. Within three months of my final decision the Council has agreed to provide the Ombudsman and Ms X with a summary report setting out the findings and actions resulting from the conclusion of its review of disabled children’s services in so far as they relate to the short breaks service.

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Final decision

  1. I have completed my investigation and uphold Ms X’s complaint. The Council acted with fault causing injustice. The Council has responded appropriately to remedy injustice identified by the statutory children’s complaint process. It has now agreed action to remedy the one outstanding area of injustice.

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Investigator's decision on behalf of the Ombudsman

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