Summary: Mrs B complained about the Council’s refusal to provide transport for her son to attend short breaks at out-of-borough placement, following a reduction in the opening hours of the in-borough provision. We have found fault with the Council’s decision not to pay for the transport and the way in which it dealt with the complaint. The Council has agreed to pay Mrs B £500.

The complaint

1. Mrs B complains that the London Borough of Sutton (the Council) unreasonably refused to provide transport for her son, C, to attend short breaks at an out-of-borough provision or allow her to use her personal budget to pay for transport. Mrs B says that the in-borough provision is only open 3 days a week and not on regular days, so will not accept bookings when she needs them. If she uses the out-of-borough provision she has to transport her son to and from school each day, which negates the purpose of the short break.

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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 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

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. I have written to Mrs B and the Council with my draft decision and considered their comments.
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.

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What I found

6. The Children Act 1989 (paragraph 6 of schedule 2) says that:

(1) Every local authority shall provide services designed -

(a) to minimise the effect on disabled children within their area of their disabilities;

(b) to give such children the opportunity to lead lives which are as normal as possible; and

(c) to assist individuals who provide care for such children to continue to do so, or to do so more effectively, by giving them breaks from caring.

The 2011 Regulations

7. The Breaks for Carers of Disabled Children Regulations 2011, explain the requirements of the short breaks duty:

“In performing their duty under paragraph 6(1)(c) of Schedule 2 to the 1989 Act, a local authority must -

(a) have regard to the needs of those carers who would be unable to continue to provide care unless breaks from caring were given to them; and

(b) have regard to the needs of those carers who would be able to provide care for their disabled child more effectively if breaks from caring were given to them to allow them to

(i) undertake education, training or any regular leisure activity,

(ii) meet the needs of other children in the family more effectively, or

(iii) carry out day to day tasks which they must perform in order to run their household”.

‘Short breaks for carers of disabled children’ guidance (March 2011)

8. This non-statutory government guidance for local authorities says that provision must include a range of breaks, as appropriate, during the day, night, at weekends and during the school holidays.
9. Councils must also publish a statement of their short breaks services on their website, which must say the range of short breaks services available, the criteria by which eligibility for services will be assessed, and how the range of services is designed to meet the needs of families with disabled children in their area;
10. Councils should also ensure that short breaks are reliable and regular to best meet families’ needs.

‘Short Breaks for Disabled Children – A legal guide for local authorities’ (January 2017)

11. This non-statutory non-governmental guidance makes clear that short breaks should benefit both disabled children and their carers. It clarifies that short breaks are services provided to children and should be a positive experience for them. But at the same time that ‘a key purpose of short breaks is to give families a break from caring. As such a service which requires a parent to attend with their child is not a short break, albeit that it may be an entirely appropriate way of meeting other assessed needs.’

Council’s short breaks’ services statement (October 2012)

12. This document explains that ‘short breaks are an activity or service from which a disabled child or young person gets enjoyment and benefit, which also gives parent carers a break from providing care’. One of the options available and used by approximately 10% of short breaks service users is overnight short breaks:

“For a small number of children and families, an overnight break where the child stays away from home is an important component in a package of care. Some overnight breaks take place in a residential unit, but in other cases overnight breaks in a family setting, with specialist foster carers, is a better way of meeting the child’s needs”.

13. It lists one place which provides overnight breaks in the borough (Unit Z).

Statutory complaints procedure

14. 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 Investigating Officer 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.

What happened

15. Mrs B is a single parent and sole carer of her son C, who is profoundly disabled with complex needs. He requires support 24 hours a day, seven days a week. Following an assessment of his needs in 2015 the Council provided a package of care, which included 30 nights a year of overnight respite care, funded by the Council at Unit Z. This was to enable C to continue to have access to safe and effective respite care, to maintain positive family relationships and support the physical and mental wellbeing of all family members.
16. The Council provided transport for C to and from school when necessary when he attended Unit Z.
17. The Council reviewed C’s care plan on a six-monthly basis, the first one in September 2015. The package stayed the same but the Council noted that C was unable to have bed baths at Unit Z so it was not ideal for him to stay more than one night. It said it would look into this further.

2016

18. In January 2016 at a further review, the Council noted the bathing issue and agreed to chase progress. It also mentioned Mrs B had an ongoing dispute with the Council about the number of days she could book at one time at Unit Z. She wanted to book a week’s respite to see her family in a different country.
19. In April 2016 the review noted the continued bathing problem. It also noted Mrs B’s dispute regarding the block booking at Unit Z. The review stated it was not part of C’s care plan and was not appropriate in meeting C’s needs especially in the light of the bathing issue and it did not support block booking as part of the short breaks provision.
20. In July 2016 the review specified that the 30 nights should be booked for one or two nights only at Unit Z. It also noted that Mrs B had booked a longer break for C at an out-of-borough provision (Unit Y) using her personal budget, to enable her to go abroad for a family funeral, but that C had missed her while she was away.
21. In September 2016 Mrs B instructed a solicitor to assist her in challenging the Council’s refusal to allow her to book a seven-day break for C at Unit Z so she could visit her family. Her solicitor wrote to the Council setting out the grounds for a challenge to the policy. The letter referred to a carer’s assessment Mrs B had completed in April 2016: she said she was lonely, separated from close family and friends and would never be able to have a decent break from caring. She said she was unable to visit her family abroad, spend quality time with her other adult children away from home, attend social or religious events or go away with her brownies in her role as Brownie leader. The Council disputed the claim but agreed to review C’s needs and provision.
22. The review took place in November 2016. It noted that C was well-supported through the short break package and registered Mrs B’s view that the package did not meet her needs, but maintained the condition that breaks at Unit Z would be limited to one or two nights. Showering arrangements had been made at Unit Z.

2017

23. In January 2017 Mrs B’s solicitor confirmed Mrs B would not proceed with legal action for the time-being because the Council had agreed to grant her a seven- night respite break for C.
24. But in March 2017 Unit Z reduced its opening times. It was now open three days a week on a rota basis: Tuesday to Thursday for two weeks, then Thursday to Saturday for one week, then Friday, Saturday, Sunday for one week.
25. Mrs B wished to book the longer break to attend her father’s funeral overseas. Longer breaks could no longer be provided at Unit Z, so the Council agreed, as a goodwill gesture, to arrange provision at Unit Y and pay for the school transport costs.
26. Mrs B complained about the reduction in hours at Unit Z and the difficulties she now had in arranging short breaks. The Council explained that Unit Z was prepared to work with Mrs B to try and arrange a longer break but it had not been possible. It suggested giving her a personal budget so she could use a provider of her choice. This was also suggested at the next review in October 2017.

2018

27. Mrs B says that after this review, the Council refused to pay transport costs to and from school if C attended short breaks at Unit Y out of the borough. It said that it was Mrs B’s choice to use the alternative provision so it would not pay. Mrs B raised a complaint about this decision in April 2018. The Council responded upholding the decision not to pay transport costs when C attended Unit Y.
28. Mrs B escalated the complaint. The Council, due to an administrative error, did not respond until September 2018. It acknowledged that Unit Z’s opening hours had reduced but said it still remained flexible in terms of opening up to accommodate families if given plenty of notice. It further acknowledged that Mrs B was not happy with this arrangement and purchased short breaks from Unit Y. The Council repeated its view that it was Mrs B’s choice to arrange short breaks at Unit Y and so it was her responsibility to arrange transport. It considered she could arrange longer breaks in the holidays at Unit Y and shorter breaks in term-time at Unit Z, thereby removing the need for transport to and from Unit Y.
29. Mrs B complained to the Ombudsman in October 2018. She says caring for a disabled young person with complex needs leads to a very unpredictable lifestyle and having a break when needed is a huge help to her mental well-being. The pressures are exacerbated as she is a single carer. Furthermore, there is usually a greater demand by parents/carers for short breaks during the school holidays which makes it very hard to get a longer break at these times at Unit Y because families of children from that borough have priority. She also says she was not aware of any flexibility at Unit Z outside of the rota
30. Between October 2017 and October 2018 C stayed at Unit Y on seven occasions for breaks of between 1 and 4 nights mainly on weekends but overlapping with school days on some occasions. C also stayed at Unit Z on seven occasions for breaks of 1 or 2 nights. C had a longer break of 14 nights in December 2018 and two nights in March 2019 at Unit Y.
31. In April 2019, the Council’s contract with Unit Z to provide short breaks ended. The only available provision for C is at Unit Y and the Council has agreed to pay transport costs to and from school.

Analysis

32. It seems to me that Mrs B has been trying to resolve two issues regarding her son’s short breaks provision since 2015:
1. The difficulty in arranging a longer respite break from caring; and
2. The refusal to pay transport costs to and from school when C has an overnight break at Unit Y in term-time.

Longer breaks

33. In terms of the first issue the law and guidance requires the Council to provide a range of short breaks at different times to allow carers a break from caring, as well as pursue leisure activities and day-to-day tasks. There is no stipulation as to the length such breaks should be. So that is a decision for the Council to make based on the individual circumstances of each case. It has on two occasions in 2016 and 2017 allowed Mrs B to book a longer break to visit family overseas in exceptional circumstances (due to bereavement). Mrs B booked a 14-night break at Unit Y in December 2018. I cannot criticise this approach.
34. I understand the Council’s view that parents should not take long breaks in term-time. But this need to be balanced with Mrs B’s need for a longer break. As a single parent and lone carer of a severely disabled child this does not seem unreasonable and has been hard to arrange given the lack of available provision in the area since Unit Z reduced its hours in March 2017. The Council says Mrs B gets respite via a personal assistant paid for by direct payments but I do not think this allows for a longer period away from caring.
35. I have not seen any carer’s assessments, apart from the content referred to in her solicitor’s letter in 2016. But as C approaches adulthood and transfers to adult social care I hope the Council will carry out a new carer’s assessment for Mrs B and address her need for a longer break from caring at some point in the year.

Transport to school

36. In March 2017 Unit Z reduced its availability by more than 50%. Since then Mrs B has found it difficult to accommodate her short break provision. She says caring for her son creates an unpredictable lifestyle and to have a break when she needs it is very important to her well-being. It is difficult to plan ahead completely to fit in with Unit Z’s patterns of availability and there is no evidence that there has been much scope for flexibility outside of the published hours.
37. Given the significant reduction and the lack of any other provision within the borough, I do not agree with the Council’s view that it was Mrs B’s choice to use the out-of-borough provision: it was the only available provision at that time. To then require Mrs B to attend Unit Y to take and / or pick up her son from school negates the purpose of the short break (as noted in the non-statutory guidance above). If Unit Z was not available, meaning Mrs B had to book a break at Unit Y then I consider the Council should have provided transport. The failure to do so was fault.

Complaint handling

38. It has taken six months to get the Council to consider the issue through its complaints process. This was too long. It also did not follow the correct procedure: it should have gone through the statutory three stage procedure as a children’s services issue but it only went to stage two of the corporate procedure. This was fault which caused Mrs B avoidable inconvenience and frustration. It has also left the uncertainty that had it been considered through the statutory procedure, a more satisfactory outcome may have been achieved.

Agreed action

39. Given the closure of Unit Z’s service, the provision of transport to and from Unit Y is no longer a problem for Mrs B. However, I consider she has been caused injustice since October 2017 by the Council’s’ decision not to pay transport to Unit Y at all, even when Unit Z was not available and by its poor complaint handling. In recognition of this injustice I recommended the Council, pays Mrs B £500.
40. The Council has agreed to my recommendation

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Final decision

41. I consider this is a fair and reasonable way of resolving the complaint and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman