Summary: The Council is at fault as it did not provide an adequate care package to allow their daughter to be discharged from hospital. As a result Y remained in hospital for two months longer than necessary and missed two months of school. Mrs X was caused distress and avoidable time and trouble. The Council has agreed to remedy this injustice by making payments to Mr and Mrs X and Ms Y and reviewing Y’s care package and respite provision.

The complaint

1. Mr Z complains on behalf of Mrs X. Mrs X complains that the care package provided by Birmingham Children’s Trust was insufficient to meet her daughter, Y’s needs which delayed her discharge from hospital. Mrs X also considers the current care package of 60 hours per four weeks is insufficient to meet Y’s needs

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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 investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children Services and Skills (OFSTED).

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How I considered this complaint

6. I have:
• Considered the complaint and the information provided by Mrs X;
• Discussed the issues with Mr Z;
• Made enquiries of the Council and considered the information provided;
• Invited Mrs X, Mr Z and the Council to comment on the draft decision.

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What I found

7. The Children Act 1989 requires local authorities to safeguard and promote the welfare of children who are in need. Disabled children are considered to be children in need in accordance with section 17 of the Children Act 1989. Local authorities are required to undertake an assessment of the child’s needs followed by a decision on whether services are called for to meet their needs and, if so, how they will be provided.
8. Local authorities must follow a statutory process for handling complaints about children’s care services. This is a three stage process with set timescales including an independent investigation and complainants have the right to progress to every stage of the process. The local authority should consider a complaint about the provision of services to a child in need through the statutory complaints’ procedure. The government has produced statutory guidance on how councils should follow the complaints procedure.

What happened

9. Mrs X’s daughter, Y, has a significant care needs due to number of medical conditions including severe epilepsy. Y lives at home with her family but Mrs X is her principal carer. Birmingham Children’s Trust delivers children’s services for the Council.
10. Y has an Education, Health and Care Plan. This shows Y had a care package of respite care for two nights per month with Core Assets and 16 overnight stays with Acorns.
11. In July 2018 Y had an operation to reduce her seizures. Following the operation Y was no longer able to weight bare and needs to use a wheelchair. The Trust’s records note the hospital contacted it in early September 2018 to advise Y was medically fit to be discharged but she now needed two people to hoist and complete her personal care.
12. Officer A, social worker, carried out a family assessment for Y to assess her needs in October 2018. Officer A’s record of her visit notes Mrs X said she experienced back pain when caring for Y alone. In her assessment officer A identified Y needed two people to support her with hoisting and personal care. Mrs X was her principal carer and she would require a second carer before and after school and during weekends and holidays to help hoist Y and with her personal care.
13. Officer A presented Y’s case to the Community Resource Panel. The Panel agreed direct payments of 16 hours per four weeks for Y’s care. Mrs X and her family considered this was not sufficient to meet Y’s needs. Mrs X refused to allow the hospital to discharge Y as she considered she could not look after her without more support.
14. Mrs X appealed against the care package. The Trust’s records show officer B, a family support worker, visited Mrs X in mid November 2018. Officer B’s record of the visit notes Mrs X told her she could not manage Y’s care due to severe back pain. Officer B advised Mrs X to get a letter from her GP to confirm this. Officer B’s record also notes she told Mr and Mrs X that she and officer A had attended a meeting at the hospital and agreed the care hours offered were not adequate to meet Y’s needs.
15. The Panel considered Mr and Mrs X’s appeal and decided to offer 26 hours per four weeks. Mrs X considered this was insufficient.
16. In December 2018 the Trust held a multi disciplinary team meeting and a ‘mini’ Panel. The Panel awarded 60 hours per four weeks for Y’s care to allow two carers to assist Mrs X. Mrs X considers the care package is insufficient and she requires more help at weekends and holidays.
17. The hospital discharged Y in January 2019.
18. The Panel’s decision letter referred Mrs X to the Ombudsman if she disagreed with its decision. In response to my enquiries the Council has said the Trust’s complaints procedure provides the complaints process does not apply where there is a more appropriate appeal or tribunal process.
19. I asked the Council to explain why the Panel did not offer a care package of 60 hours per month in October 2018. The Council has said Y’s assessment did not state Mrs X could not provide any assistance with Y’s care. In support of her appeal Mrs X submitted a letter stating she had a back injury so the panel increased the care package to 26 hours as Mrs X could not provide support. Mrs X then provided a letter from her GP for the mini Panel in December 2018. The Trust acknowledged Mrs X could not provide any care for Y so agreed support for a second carer. The Council has said the Trust would have ordinarily increased the care package from 26 to 52 hours for the second carer but it increased it to 60 hours to encourage Mrs X to agree to Y’s discharge from hospital.
20. The Council has explained care packages for eligible children are determined using the Trust’s Threshold Document. This document sets out example indicators of need to inform the decision making. The Panel determines a level score which is then multiplied by £170 to calculate how much support a child will receive every four weeks. There is also a variable factor relating to the age of the child. The Council has acknowledged there needs to be greater transparency in how care packages are calculated so it will undertake a review of the Panel’s processes.
21. The Council has said the provider stopped the overnight respite for Y as Mr and Mrs X were using it as day provision rather than overnight and the provider could not offer this provision. Mrs X can access other overnight provision for Y.

My assessment

22. The evidence shows the Trust did not provide an adequate care package in October 2018 for Y’s discharge from hospital. Officer A’s record of her assessment visit notes Mrs X said she experienced back pain when caring for Y alone. So, the Trust was on notice that Mrs X had a back problem and she could struggle to care for and hoist Y. It should therefore have satisfied itself further that Mrs X could support Y’s care, particularly when Y’s assessment shows no other family member could assist Mrs X with Y’s care. Officer B’s record of her visit to Mr and Mrs X in early November 2018 notes she and officer A considered the care package was inadequate.
23. The Trust increased Y’s care package from 16 to 26 hours per month following Mr and Mrs X’s appeal. Mrs X appealed on the grounds she could not provide support due to her back injury. So the Trust was aware Mrs X could not provide support and it could have increased the care package to 60 hours per month at this time. It is not clear why the Trust only increased the care package when Mrs X provided the GP’s letter. The Trust could have requested a GP’s letter in October 2018 if it had properly considered the issue of Mrs X’s back injury when she raised it during Y’s assessment. So, on balance, I consider the Trust did not provide an adequate care package from October to December 2018 to support Y’s discharge from hospital. Had it provided an adequate care package it is likely Y could have returned home by beginning of November 2018 at the latest.
24. As a result Y remained in hospital for two months longer than necessary. She also missed two months at school. Mr and Mrs X were caused distress and put to avoidable time and trouble in having to travel to hospital for two months longer than necessary and challenge the care package.
25. It is not clear from the Panel’s records how it calculated Y’s care package each time and why the Panel was satisfied it was sufficient to meet Y’s needs. The Council has acknowledged the Trust should have reflected in its paperwork how it calculated Y’s care package. It has also acknowledged a need for greater transparency in how care packages are calculated. I welcome the Trust’s intended review of the Panel’s processes. But the lack of transparency and clarity in how the Panel calculated Y’s care package means Mr and Mrs X cannot be sure the care package is sufficient to meet Y’s needs. Mr and Mrs X also consider they require more than 60 hours per month of support. In order to remedy this uncertainty the Trust should review Y’s care package to see if it is adequate to meet her needs and provide a full explanation to Mr and Mrs X of how it calculated her care package
26. Prior to Y’s operation she received two nights of respite per month with Core Assets plus 16 nights with Acorns. I understand Core Assets provision ended as Mr and Mrs X did not use the overnight provision and it could no longer offer the provision. Respite care from Acorns was available to Mr and Mrs X and Y if they wanted to use it. But as Core Assets can no longer provide respite, the Trust is no longer offering the amount of respite care previously offered to Y. So the Trust should review Y’s respite provision to ensure it meets her needs.
27. The Trust is at fault in signposting Mr and Mrs X to the Ombudsman rather than to the statutory children’s social care complaints procedure. The Council disagrees it is at fault as it considers it would be reviewing the same decision twice if it considered Y’s care package through its internal review procedure and the statutory complaints procedure. But the key point is the complaints procedure is statutory so the Trust has a duty to investigate complaints covered by this procedure. Mr and Mrs X’s complaint about Y’s care package is a complaint covered by the statutory complaints procedure. Furthermore, the guidance does not exclude a complaint subject to a council’s own appeal procedure from the statutory complaints procedure. I therefore remain of the view the Trust is at fault for not signposting Mr and Mrs X to the statutory complaints procedure. The Trust should review its complaints procedure to ensure it complies with the statutory complaints procedure.

Agreed action

28. That the Council and Trust:
1. Send a written apology to Mr and Mrs X and makes a payment of £500 to acknowledge the distress and avoidable time and trouble caused by the Trust’s failure to offer a sufficient care package to Y to enable her discharge from hospital. The Council should take this action within one month of my final decision.
2. Make a payment of £500 for Y to acknowledge the inadequate care packages caused her to remain in hospital for two months longer than necessary and to miss two months of school. The Council should make this payment within one month of my final decision.
3. Review Y’s care package of 60 hours per month and respite provision to ensure it is sufficient to meet her needs and explains to Mr and Mrs X why the Trust considers the care package offered at the end of the review is sufficient. The Trust should take this action within two months of my final decision.
4. Review the Panel’s procedures for considering care packages to ensure clarity and transparency in how it calculates care packages. The Council should explain to the Ombudsman how the Trust has improved its practice in this area within three months of my final decision.

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Final decision

29. The Council is at fault as it did not provide an adequate care package to allow their daughter to be discharged from hospital. As a result Y remained in hospital for two months longer than necessary and missed two months of school. Mrs X was caused distress and avoidable time and trouble. The Council has agreed to remedy this injustice so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman