Decision : Not upheld
Decision date : 12 Nov 2018
The Ombudsman's final decision:
Summary: Mr X says the Council is at fault in how it considered his request for Direct Payments for his son and his attempts to challenge its decision on this matter. The Ombudsman has not found any evidence of fault by the Council and for this reason he has ended his investigation of this complaint.
- Mr X says the Council is at fault in how it considered his request for Direct Payments for his son, Y. He also says the Council is at fault in how it handled his requests to appeal its decision on this matter and his subsequent complaint.
The Ombudsman’s role and powers
- 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)
- 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)
- 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 my investigation I discussed the complaint with Mr X and considered information he provided. I made enquiries of the Council and considered its response and information it provided. I set out my initial thoughts on the complaint in a draft decision statement and I invited Mr X and the Council to comment.
What I found
- he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
- his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
- he is disabled
Kent County Council Disabled Children and Young People’s Service eligibility criteria
This document sets out the criteria for assessing whether a child or young person is eligible for assistance from this service. For a child or young person to be eligible they must be regarded as ‘severe or profound’ needs in one of the categories set out in the criteria.
- Mr X and his wife, Mrs X, live with their son, Y and their teenage daughter. Y has been diagnosed with autism and attention deficit hyperactivity disorder (ADHD). I understand Y’s behaviour can be very challenging and that he can be violent towards his family and damage the family home.
- In March 2017, the Council began a Child and Family Assessment following a request from Mr X for support looking after Y.
- As part of the assessment the Council considered information from medical professionals involved in Y’s care, a copy of Y’s Statement of Educational Need and information from Y’s school.
- The assessment concluded that Y did not meet the eligibility criteria for the Disabled Children and Young People’s Services. This was because Y did not have severe or profound needs in any of the assessment categories. It also concluded that, while Y’s behaviour could be challenging, it was not severe.
- Nevertheless, the assessment recognised that a break from caring for Y would benefit the family and for this reason it made a referral to its Early Help service. It also suggested a service which provides an after-school club and short breaks.
- Mr X was unhappy with the outcome. He sought advice from several officers before being advised there was no appeals process and the outcome could only be challenged by making a complaint.
- In July Mr X attended a meeting at Y’s school which included the Council’s Director of Children’s Learning Disability and Mental Health. At the meeting a number of actions were agreed in order to provide support to Mr X and his family. These included:
- A referral to the Early Help service as per the outcome of the Child and Family Assessment;
- For Mr X to set out what inaccuracies there are with the assessment and for this to be signed off;
- Arrange carer support so Mrs X could have some respite and to provide time for her to spend with her daughter and;
- A complaint to be logged on Mr X’s behalf asking for a review and second opinion on the Child and Family assessment and setting out what services are available to the family to prevent it from going into crisis.
- Following the meeting Mr X wrote to the Council saying the assessment would benefit from a number of amendments. The Council made the changes it considered appropriate. It also set out the remaining amendments that Mr X proposed in a different colour on the assessment. The outcome of the assessment was not altered by the amendments. The Council also reiterated the reasons for its decision.
- An Early Help worker was allocated to Mr X.
- In September a meeting was held at Y’s school to discuss his Statement of Educational Needs. The meeting was attended by the Early Help worker. Mr X says during the meeting the Early Help worker said her service could not offer Mr X the help he required. This is not reflected in the notes of the meeting.
- Mr X was unhappy the Early Help worker had attended the meeting as he did not want assistance from the service. Following the meeting Mrs X confirmed they did not want to use the service and accordingly the referral was closed.
- Also in September the Council’s Director of Child and Adult Learning Disabilities and Mental Health submitted the complaint agreed at the July meeting following correspondence with Mr X. Mr X was notified about the complaint by email and asked to provide further information to clarify his complaint as he had raised many issues with the Council that year.
- Mr X told the Council that the details of his complaint were known to the officer who had referred it and therefore these could be obtained from her. For this reason, the Council used the details it had.
- In January 2018 the Council wrote to Mr X advising that his complaint would be considered at the second stage of the Council’s process by an Independent Person.
- Mr X responded by asking for information on the Independent Person and the investigating officer from the Council. The Council replied explaining the process and providing details of the officer it had appointed to conduct the investigation.
- The Council progressed matters and the Investigating Officer wrote to Mr X to arrange a visit to discuss his complaint. In response Mr X asked the Council to provide details of what the complaint would consider and what factors it would take into account when considering the outcome of the assessment.
- The Investigating Officer responded by explaining the process.
- Mr X responded asking why the complaint forwarded did not include the view of Y’s school on the outcome of the assessment. He also asked for copies of the notes from the meeting last year.
- The Council told Mr X these matters could be discussed during the proposed visit and the scope of the investigation discussed.
- Correspondence between the Council and Mr X continued. The Council advised Mr X that it could not meet his expectations of the complaints process and it felt he was consciously trying to delay the complaint being dealt with. He was advised to pursue the matter via the Ombudsman.
- It is not for the Ombudsman to substitute his judgement for that of the Council’s officers. Instead he examines the process leading to the Council’s decisions for evidence of fault.
- Mr X says the Council is at fault in its handling of the assessment. I do not agree. The Council has provided evidence showing that it had regard to all the relevant information when it determined the assessment. The medical information provided did not demonstrate that Y met any of the severe or profound categories. I appreciate that Mr X disagrees with the Council’s view. However, I have found no evidence of fault by the Council in how it reached its decision and therefore there are no grounds on which I can question the merits of its view.
- I note that Mr X feels the assessment process is flawed. He feels that children that score high in some categories and low in others will end up having a skewed overall result not reflecting their needs. I do not agree. The criteria used by the Council only require a child to be assessed as having severe or profound need in one of the categories. Therefore if a child has substantive needs in one of the assessed areas this will result in them being eligible for assistance regardless of whether or not they only have mild needs in other areas.
- Mr X has also raised concerns that the Council’s assessment uses the phrase “severe challenging behaviour” when agencies representing people on the autistic spectrum advocate the use of the term “challenging behaviour”. The assessment is used for assessing all referrals to the service. The Council says that it uses the same form to ensure consistency across its decision making. I do not consider the Council at fault in this matter. It would not be practical for the Council to have different assessment forms for each of the many conditions presented to it. Moreover, I agree that having different forms might compromise the consistency of the decision making process which would not benefit those requesting assistance.
- Furthermore, I note the Council uses the terminology advocated by the agencies representing those on the autistic spectrum in other documents such as Y’s Education Health Plan.
- Mr X says the Council have not taken action to support him and his family in managing his son’s needs. I do not agree. As already referred to, the Council offered Mr X and his family assistance from its Early Help service. I appreciate Mr X feels their needs could only be met by Direct Payments, allowing them to find their own respite provision. However, he did not engage with the offers of help made by the Council to see if they could yield some positive outcomes for the family.
- I am aware that this matter has been ongoing for some time and the circumstances of Mr X and his family may have altered. In acknowledgement of this the Council has offered to carry out a new Child and Family Assessment for them. I note the last offer was made earlier this year following concerns being raised about Y’s behaviour towards his older sister. Mr X refused the offer. I am satisfied the Council has made suitable efforts to engage with Mr X and to offer him and his family support and, where appropriate, reassessment.
- Mr X has sought to challenge the outcome of the assessment and I understand he feels there should be an appeals process to do this. However, there is no such process for challenging the outcome of assessments and the Council correctly told him how he could raise concerns about how the assessment was considered through its complaints process. I do not find fault by the Council.
- Central to Mr X’s complaint to the Ombudsman is his view that the Council has deliberately attempted to frustrate his attempts to complain to it. I have considered correspondence provided by the Council showing its communications with Mr X on this subject. This shows the Council forwarded the complaint on his behalf, included him in the process by asking him to clarify his concerns to ensure they were all included, sought his agreement on the scope of the investigation and answered his substantive questions about how the investigation process would work. I do not see its actions are compatible with a body trying to prevent somebody from having their complaint considered.
- I have ended my investigation of this complaint as I have found no evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman