Decision : Upheld
Decision date : 14 May 2019
The Ombudsman's final decision:
Summary: Mrs P complained the Council failed to offer her family sufficient respite. At the time her child, Q, was out of school with no provision. The Council has agreed to make a financial settlement, including reimbursing Mrs P for avoidable expenses and for Q’s missed education, and to consider providing respite.
- The complainant, whom I shall call Mrs P, says the Council has failed to provide her family with sufficient respite, particularly when her child, Q, was out of school
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)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- 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 P sent with her complaint and I made enquiries of the Council and assessed its response. I sent Mrs P and the Council a copy of this draft decision and took comments into account before issuing a decision.
What I found
- Q has special educational needs and can exhibit violent behaviour. By May 2017, the family was struggling to cope and wanted help and support.
- An initial single assessment was carried out on the family in May 2017. This acknowledged the family wanted respite provision for Q and suggested there was a ‘possibility of short breaks money from the short breaks scheme’ being made available once Q had an Education, Health and Care Plan (EHCP). It also recommended a Child and Family Assessment (CAF) would be useful to get a better picture of the family along with referrals to other universal services (i.e. to general services that could be accessed by any one rather than specialist services). This shows the Council appreciated, at an early stage, the family wanted respite.
- The Council has subsequently told me that respite was only considered necessary if universal services could not meet Q’s needs. Q’s behaviour was extremely difficult at that point and Mrs P’s view was that the family was in crisis. The Council acknowledges they had concerns about Q’s younger sibling whom Q was threatening to harm.
- In June 2017, a social worker was allocated with the aim of reducing risk in the household and joining up services received by the family from professionals. They worked with Q’s parents and offered behaviour management strategies. There were statutory visits to Q’s sibling every ten days. There is no evidence other services were offered and Q did not have an educational placement. The Council says; ‘regular child in need meetings were held’ but I have no evidence of this until the meeting below in January 2018.
- The January 2018 Child in Need meeting agreed to contact the Children and Young People’s Disability Team. There was still no CAF; there was nothing mentioned about respite or the needs of the family as a whole.
- Two months later there was a further single assessment. This identified the family needed short breaks and there had to be a multi-agency approach to get Q back into school. A request was made for 16 hours of respite per month while Q was out of school at which time the Council felt the need for respite would fall away.
- Three days after that, the relevant panel met: “DECISION- Not agreed. Does not meet CYPDT criteria at this time. Confused as to why CAMHS has not engaged as DA and attachments seem to be the main issues with disabilities. ACTIONS- CYPDT SW to assist safeguarding with a multi-agency meeting that is required ASAP. Consideration of how SEND funding is getting used if he is not resourced based. Can it be used for a more bespoke package. Arrange behavioural support for family.”
- The Council tells me that in October 2018 it agreed a payment of £69 per week to be made, backdated to April 2018, to continue while Q was out of school. However, this was not paid until March 2019 and although Q is still not in school full time, the Council was only intending to pay until the Autumn term of 2018. Mrs P says she had to pay for Q’s sibling to attend a nursery when Q was out of school because of the risks posed to them by Q and also because Q needed 1:1 attention as he did not have the stimulation he would have got by being in school. This caused the family hardship.
- As of November 2018, Mrs P said the family was not receiving short breaks or other respite. The Council told me that Mrs P was accessing short breaks funding but had chosen not to use this for respite. Mrs P says she was explicitly told she couldn’t use this for respite and that it was to support Q to access activities.
What should have happened
- Once the initial single assessment had been carried out, and made recommendations, effort should have been made to either put those recommendations in place, or monitor needs, without undue delay. The receipt of services should not have been delayed because Q’s EHCP was not completed and that Q was out of school should have been factored in to planning. Efforts should have been made to involve education in finding Q a placement urgently. If a CAF had been carried out, this might have allowed the family’s needs (including those of Q’s young sibling) to be looked at holistically. This would have helped the family recover.
- The March 2018 assessment proposed an amount of respite, in line with what had been asked for. There is no reason given why this could not have been considered earlier.
- It is not clear the March panel understood the family had been waiting for the Council to provide breaks for ten months by that stage. Given ‘universal services’ had not provided respite for all that time, it seems unlikely the family were going to be able to access it elsewhere than through Council provision. The panel clearly identified Q was out of school, and a multi-agency approach was necessary, but there was no explanation as to why this had not been noted earlier as the family’s situation appeared to not have markedly changed.
- Once the payment of £69 had been agreed in October 2018, it should have been paid without delay.
- Q was not anticipated to be back in school full time until the end of February 2019. He should have been in an appropriate placement or, at least, had support to access activities. This would also have meant Mrs P could have avoided placing Q’s sibling in a nursery.
- It was fault the Council failed to put in place the recommendations of the initial single assessment or monitored whether respite could be provided by other services from that time. On the balance of probabilities, it would not have taken the Council eight months to understand that universal services would not provide the family with the respite or short break support they wanted and needed.
- It was fault the Council wanted Q’s EHCP to be finalised in order to allow the family access to short breaks even though it recognised the importance of this support to the family. If a family needs short breaks the Council should consider providing them whether or not there are EHCPs, otherwise the Council risks fettering its discretion to provide.
- It was fault Q was out of school with no provision. This meant Mrs P had to put his sibling into nursery because they were at risk from Q. Q also needed 1:1 support from her. Mrs P says this was made more difficult for the family because Q’s mental health deteriorated over this time; partly because Q saw the family struggling to cope.
- It was fault there was a gap of eight months between the initial assessment and the child in need meeting.
- It was fault the Council failed to explain why it was not going to provide respite that had been agreed in an assessment. The Panel should have considered how long the family had already waited and the multiagency meeting should have been asked to discuss this as part of its deliberations.
- It was fault that the £69 was not paid until March 2019 and it only covered the period until Q started back at school even though he was only attending part time.
- I cannot say, even on the balance of probabilities, whether the family would have received respite if a CAF had been completed after the initial assessment in May 2017. It was reasonable for the Council to consider whether universal services could provide support at the start of the process although, on the balance of probabilities, this would not have taken eight months to identify and the Council should have followed this up sooner than it did. I consider this uncertainty causes the family distress. This was compounded by the delay in moving the case forward, which caused the family time and trouble as they knew they would not get services unless a panel agreed.
- Q missed a great deal of provision when he was out of school. Needing an EHCP was not a reason to delay finding him a suitable placement.
- The absence of an EHCP for Q should not have been a reason for failing to put in place respite or short breaks given the Council knew this would provide the support the family wanted. This caused the family additional distress because they did not know when respite might be provided or what form it would take.
- Because Mrs P was expected to support Q at home, she had the avoidable expense of putting Q’s sibling into nursery.
- When Mrs P was promised a payment of £69 per week, she expected it to be paid immediately. It was not paid until the Ombudsman made enquiries on her complaint.
- The Council will apologise to the family for the fault identified in this statement. It is asked to do this within a month of my decision.
- The Council will make a payment to the family of £500 for distress and £300 for time and trouble. It is asked to do this within two months of my decision.
- The Council will make a payment of £500 per month when Q was out of school with no provision and £350 per month from when part time provision started until Q returns to school full time. This is for loss of education so is to be used to support Q’s education going forward. The Council is asked to calculate and make this payment within three months of the date of my decision.
- Upon evidence of expenditure, the Council will reimburse Mrs P’s nursery fees from when Q’s sibling had to go into nursery during the time Q was out of school. The £69 per week should continue to be paid until Q is in school full time. This can be used to offset the costs of the fees. Once Mrs P provides this invoice, the Council is asked to make arrangements to pay this within two months of the date of my decision.
- The Council will consider whether its guidance on short breaks is appropriate given Mrs P believes it cannot be used for respite. It should also consider whether additional respite is merited given how much time the family were waiting for a service and that there was no explanation why this could not have been provided. The Council is asked to do this within three months of the date of my decision.
- The Council will amend its procedures so the needs of the child and family are considered holistically and that matters proposed in assessments are followed up in a timely way. It will do this within four months of the date of my decision.
- I have found evidence of fault leading to injustice and the Council has agreed a suitable remedy for this.
Investigator's decision on behalf of the Ombudsman