Summary: Miss B complained that the Council failed to pay sufficient compensation for the injustice caused by fault in the way it dealt with provision of support for her son, C. The Council has agreed to pay £3100.

The complaint

1. Miss B complains that the London Borough of Sutton (the Council) failed to pay sufficient compensation for the injustice caused as a result of fault (identified in the complaints process) in the way it dealt with requests for support for Miss B’s son, C.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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

5. 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 Miss B and the Council with my draft decision and considered their comments.
6. 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

7. The Children Act 1989 defines a child in need as a child who:

(a) 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;

(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c) he is disabled.

8. The law also imposes a duty on the Council to safeguard and promote the welfare of children within their area who are in need, and promote their upbringing by their families, by providing a range and level of services appropriate to those children’s needs.
9. The whole assessment process should only take 45 working days. Once completed the Council must decide how to meet the assessed needs. Sometimes this means the case goes to a Panel. But the Panel cannot then decide not to meet those needs unless they think the assessment is flawed.
10. The council offers the services to meet the needs to the family. The family decide whether it wants that service or seeks direct payments.

Children’s Services complaints process

11. 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. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.

Educational needs

12. There is no statutory duty to provide alternative educational provision for a child out of school for more than five days, after the final Friday in June in the academic year in which they reach 16.

What happened

Background

13. Miss B is a single parent to her two children. Her son C has had mental health problems for several years and the Council had been involved with the family for a number of years up until August 2014 when it closed the case. Miss B says she had to give up work in 2010 due to the stress of caring for C and trying to get him the right support. C’s sister, E, has been attending a weekly boarding school for some time, but is home at weekends and holiday periods.

November – December 2016

14. C was admitted to hospital (under a section of the Mental Health Act) in November 2016 due to a deterioration in his mental health and the Council allocated a social worker to his case. In December 2016 the mental health tribunal decided he should be discharged to his mother’s care with support from the Children and Adolescent Mental Health Service (CAMHS) and other outreach services. C was diagnosed with Asperger’s Syndrome and also used cannabis on a regular basis. He did not wish to work with agencies to reduce this usage.
15. He was not attending school. Miss B requested an Education and Health Care Plan (EHCP) assessment.
16. The Council closed the case saying that C was receiving support from CAMHS and that he had refused to engage with Council services. The Council refused to carry out an EHCP assessment due to lack of evidence of a special educational need. But it wrote to the school to request educational advice.

February – October 2017

17. Miss B requested help from the Council in February 2017. The Council reopened the case and allocated a social worker. She visited the family to carry out an assessment. Miss B and E said that C’s behaviour made them feel unsafe.
18. Miss B also requested an EHCP assessment for the second time.
19. The care needs assessment (completed in March 2017) recommended that C’s case be transferred to a longer-term ‘Quad’ team and the Targeted Youth Service, [TYS] (a service providing support to vulnerable young people).
20. The Council refused to carry out an EHCP assessment again due to a lack of evidence of special educational needs. The Panel questioned if an EHCP was the most appropriate route to aid C’s return to school and recommended a referral to the TYS.
21. TYS started work with C in April 2017, with a worker trying to meet with C on a weekly basis. He has some success but C cancelled a high proportion of the meetings.
22. Miss B complained to the Council on 18 May 2017 about the lack of communication and delay in providing support.
23. The Quad team did not open the case until mid-June 2017. It then allocated a social worker and a family support worker. They met Miss B on 23 June 2017, but agreed not to meet C at that point. They advised Miss B of additional support services, of which she said she was aware and accessing. The social worker agreed to hold a professionals meeting, and referred C to CAMHS and a psychologist.
24. The Council responded to Miss B’s complaint on 22 June 2017: it upheld the complaint regarding the failure to respond to Miss B’s communication and failure to allocate a social worker. It partially upheld the complaint about a lack of communication from the Council. Miss B was dissatisfied with the response: she said it contained inaccuracies and the Council was making incorrect assumptions about C. She escalated the matter to stage two of the complaints procedure.
25. The social worker and the family support worker met with the psychologist on 10 July 2017 and discussed the transfer to adult services as C would be 18 within six months. They agreed the social worker would discuss the transfer with a manager and the psychologist would discuss the case with CAMHS. A further professionals meeting was held on 13 July 2017 at CAMHS.
26. The meeting acknowledged that Miss B was struggling to manage C’s behaviour. CAMHS felt that hospital assessment and treatment could be appropriate but Miss B preferred outreach support services. It was noted C was not taking his medication and was still using cannabis. The meeting agreed that a safety plan involving the emergency services needed to be formally co-ordinated and that a professional network should maintain liaison to manage any crisis situations.
27. TYS continue to try to work with C, along with the psychologist. Miss B called the police in July 2017 due to C’s behaviour and said that C being at home meant he was at risk and unstable.
28. The Council agreed on 19 July 2017 to carry out an EHCP assessment. C was still not attending school. The Council has no record of contact with C’s school between January 2017 and the end of the academic year.
29. At the end of July 2017 the family support worker felt there was no role for her due to the complexity of the case and withdrew. At the beginning of August 2017 the Council decided it was not appropriate to transfer C’s case to adult services at that time.
30. There was a further review in August 2017 where it was agreed that C would not be hospitalised. In September 2017 the Council decided to introduce a social worker from the adult team to work alongside the existing social worker to ease the transition to adult services. There was another treatment review in October: again it was noted that C had stopped taking his medication and was smoking a lot of cannabis.
31. The Council had, in September 2017, appointed an investigating officer to investigate her complaint at stage two of its procedure. It did not appoint an independent person. The investigating officer interviewed Miss B on 15 September 2017 and sent his report to the Council on 2 November 2017. The Council took no further action on it at this time.

November 2017 - EHC Plan

32. On 1 November 2017 a social work supervision noted that no social worker from the Quad team had met C and no child in need reviews had taken place. The social worker considered there was a block on progression of the case which needed to be discussed at a senior level. There was a professionals meeting at the beginning of November 2017 which agreed that TYS wanted to close the case and the social workers should try and transition the case back to social care. They also discussed C’s cannabis usage and considered a section 47 (child protection) investigation due to the ongoing concerns about Miss C having to buy the drugs for C.
33. On 8 November 2017, the TYS noted that there were concerns amongst the professional network that the case and drifted and there had been no significant change.
34. On 16 November 2017, the Council and CAMHS held a joint child in need review and a community treatment review. Miss B and C attended and contributed. Again it was agreed that the case would transfer from TYS to social care and would take place gradually before Christmas. The health service agreed to put in place a person-centred planner, designed to support people with Autistic Spectrum Disorder (ASD). An EHCP was nearly completed, which required the ASD team to put in place therapeutic support in school and provide transport to and from school. C agreed to attend school once an adapted timetable was put in place.
35. The EHCP was finalised at the end of November 2017. One of the outcomes specified in respect of education was:

[C] will resume his A Level studies when he is well enough to do so. If this is not possible, consideration will be given to alternative constructive plans for support.

36. The Council said it would achieve this as follows:
• Priority needs to be given to ensuring that [C] is well enough to resume his studies. His doctors and other health professionals are best placed to offer advice on this. Then, consideration will need to be given to where and under what circumstances [C] resumes his studies. If he is to return to school careful consideration will need to be given to the development of a transition plan and support package in school. Until he is well enough to return to education, [C] is likely to benefit most from on-going support from his school in order to assist him with self-directed study at home.
• Should it turn out that resuming A Level studies is unrealistic, consideration will need to be given to alternatives such as work placement and / or training.
• [C] should be fully involved in all discussions about his education / future career path.
37. In respect of social care, the outcome was:
• [C]’s social care needs will continue to be met so that he is able to access education, and so that he is less reliant on family support for his basic care needs.
38. The Council said it would achieve this by:
• Intensive befriending support (mentoring) that will be able to undertake more frequent visits to [C] This support will need to be flexible in its approach as interaction with [C] may be required on a daily basis at times. He may need help with getting to school or staying in school.
• Regular medication reviews to ensure any medication he is on is being appropriately assessed and monitored.
• A holistic assessment of [C]’s global needs that will need to be based on the information already obtained. This will need to be pulled together in one assessment that clarify what [C]’s needs are with recommendations on how they can be addressed.
• Transition to adult services to be offered beyond [C]’s 18th birthday.
• Ongoing support from social care services, as deemed appropriate by the professionals in Social Care, due to [C]’s high risk to life and his lack of self-help skills.

December 2017 – April 2018

39. On 11 December 2017, the Council held another review where C’s transition back into education was discussed following the finalising of the EHCP plan, providing C with 25 hours of additional 1:1 support during lessons. The plan was to support C back into school over the rest of the year with a view to starting year 12 again in September. Tuition at home was also discussed.
40. In January 2018 TYS and the autism support worker reported that C was not engaging. At a social work supervision session it was noted that no child in need review had taken place since November; that contact with C and his family needed to be made, along with liaison with YTS to enable a smooth handover.
41. In February 2018 at the child in need and community treatment review, an ongoing lack of engagement was noted and Miss B raised concerns again about C remaining at home. No progress had been made getting C back into education.
42. TYS closed the case on 26 February 2018 and Children’s Services closed the case on 15 March 2018. In April 2018 C turned 18. The adults team discussed possible hospital treatment options in conjunction with health colleagues.

Second stage two complaint investigation

43. Miss B contacted the Council in April 2018 to chase up the complaint response. The Council could not find the original stage two report, so it appointed a new investigating officer and independent person. They interviewed Miss B in May 2018 and agreed the following points of complaint:
• Poor communication and engagement from Social Services for a prolonged period;
• The Council had been treated Miss B as a criminal and an abuser;
• Lack of outreach support generally and particularly during a crisis;
• No care plan in place following C’s discharge from hospital and no communication from the Council;
• A decade of pushing and fighting for support due to a lack of engagement and support from the Council and refusal to undertake an ECHP assessment; and
• No functional behaviour assessment or educational psychologist to support C with his anxiety, leading to him being threatened with exclusion a week before his GCSEs.
44. The investigating officer completed his report in August 2018. He concluded:
• The Council’s communication with Miss B over the previous 18 months had been poor but there was no evidence it had treated her as an abuser or criminal;
• The Council failed to follow up the assessment from March 2017 with a comprehensive child in need plan. The Council failed to appreciate its role in coordinating the range of services available to Miss B, C and E. If a plan had been in place, with regular reviews and revisions, it could have resulted in more appropriate support being put in place and perhaps given Miss B more confidence to work through times of crisis.
• There was a three-month delay in allocating a social worker between March and June 2017;
• The Council was too quick to close the case when C was discharged from hospital in December 2016. Even taking into account C’s reluctance to engage, C would have met the threshold for social work involvement via an assessment. This may have resulted in a more co-ordinated multi-agency approach, more services being provided or at least the TYS intervention starting earlier;
• He could not reach a view on lack of action by the children’s services team in putting place the EHCP provision but he felt the lack of a child in need plan and the attendant co-ordinating role, contributed to the lack of progress; and
• The Council should have done more to address C’s cannabis use and Miss B’s role in paying for it.
45. He recommended the Council should give Miss B a full written apology, update its Communication Standards and training provided to all staff involved in service delivery, and to improve its case handover procedures.
46. Miss B remained unhappy with the response and escalated the complaint to stage three in September 2018. A stage three panel heard the case in October 2018. It concluded that:
• The Council had not treated Miss B as a criminal or abuser;
• The issue of its role in the EHCP process remained inconclusive;
• The issue of C’s cannabis use was the responsibility of the health service;
• There was a need for much better co-ordination of the agencies involved with C and Miss B;
• It endorsed the stage two conclusions about poor communication and failure to implement a child in need plan;
• The Council should make a financial payment to Miss B. In respect of this it said:

“We did not feel that the Borough could be held responsible for all the inevitable stresses, anxiety and pain which stem directly from [C]’s condition; nor for [Miss B] giving up her job to care for him. We noted also at times [C] through no fault of his own, made it difficult for services to engage with him. It is not certain that, if a CiN plan had been in place and working properly that, [C] and his family would have had access to better services. However we are in no doubt that [C] did not get all the support he should have had, and neither did [Miss B]; and when she complained about it the response was not satisfactory. We recognise that not having a social worker to turn to, for help in understanding what might be available and how to access it, caused [Miss B] immense frustration, distress and a sense of isolation. We also feel that the resulting distress and anxiety for [E] has not been fully recognised.”

47. It said there was justification for a payment based on the following points:
• Poor communication from February 2017 to August 2018 and the resulting frustration for Miss B;
• The consequences for C, E and Miss B of delay in co-ordinating the provision of supportive services, recognising their anxiety and distress as a result; and
• Miss B’s time and trouble in pursuing the complaint over a timescale some 12 months longer than it should have been.
48. The Council wrote to Miss B in November 2018 offering a total of £1300:
• £300 for Miss B’s time and trouble in pursuing the complaint and the delays in the process;
• £500 for the distress caused by the difficulties in accessing support for C and the impact on all three of them;
• £500 for the risk of harm caused by the failure to implement the child in need plan.
49. Miss B then complained to the Ombudsman as she felt the payment offered was insufficient. She said it did not reflect the financial impact on her, her inability to go back to work, or the emotional damage done to all three of them. She said the payment should recognise the impact over a longer period of time.
50. C moved to a residential placement in a different borough on 27 September 2018.

Analysis

51. There was excessive and avoidable delay in completing the complaints process which caused Miss B significant time, trouble and frustration. However, I also consider that the if the complaints process had ended sooner (at a critical time in late 2017/early 2018), it may have had an impact on the services offered to C and Miss B. The extended delay meant the complaints process did not conclude until eight months after C turned 18 increasing the uncertainty that outcomes could have been different.
52. The complaints process eventually identified significant fault causing significant injustice to C, E and Miss B over a prolonged period of time (December 2016 to August 2018). I do not consider the financial payment offered is adequate. The Council has failed to recognise the impact on all three people, specifically highlighted in the stage three panel decision.
53. However, I do not agree that the injustice should be considered over a longer period of time. Miss B gave up her job in 2010, over nine years ago and the Council’s involvement before 2016 was over five years ago. I consider Miss B could have complained about these events at an earlier point.
54. In terms of C’s education, he reached 16 in April 2016 and so the Council had no statutory duty to provide alternative education for being out of school, from November 2016 onwards. However, beyond the intervention of the TYS in April 2017, the lack of social care input and a robust child in need plan meant that C’s educational needs were neglected until the EHCP was finalised in November 2017.
55. A detailed plan was put together and intentions were positive with efforts being made to engage C in early 2018. However, these were unsuccessful and there is no record of further interventions after this point. C effectively missed out on 18 months of education. I accept this was largely to do with his mental health but I consider the Council was slow to intervene or prioritise his educational needs.

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Agreed action

56. In recognition of the injustice caused to Miss B, C and E, I asked the Council to:
• pay Miss B £300 for the delays in the complaints process;
• pay Miss B £500, C £1000 and E £300 for the distress caused by the difficulties in accessing support for C and the impact on all three of them; and
• pay £1000 to the family for the risk of harm caused by the failure to implement the child in need plan.
57. This is an overall total of £3100 and was recommended as a payment to replace the Council’s offer.
58. The Council has agreed to my recommendation.

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Final decision

59. I consider this is a reasonable and fair 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