Summary: Ms S complained the Council failed to help her cope with her youngest child, T’s, behaviour and that it ‘normalised child to parent violence’ instead of putting in place respite support. The Ombudsman has found fault causing injustice. The Council has already apologised. It has been asked to make a payment to acknowledge the impact of the loss of respite care.

The complaint

1. The complainant, whom I shall call Ms S, complained that the Council:
• failed to help her cope with her youngest child, T's, behaviour and that it 'normalised child to parent violence' instead of putting in place support.
• did not keep to arrangements it had made and failed to provide respite care.
• failed to properly remedy her complaint, which it had mainly upheld.
2. Ms S says the Council’s failings have had a huge emotional and physical impact on her and her family, causing frustration, isolation, desperation, damage to property and injuries. She says she had to give up work due to the lack of respite care.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
5. 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.
6. 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)
7. 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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How I considered this complaint

8. I considered the information submitted by Ms S with her complaint and spoke to her on the telephone. I considered the Council’s responses to her complaints and:
• The Children Act 1989
• Statutory Guidance Working together to safeguard children
• Statutory Guidance Getting the best from complaints
• The Pan Sussex Child Protection and Safeguarding Procedures Manual
9. I have considered Ms S and the Council’s comments on three draft decision statements.

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What I found

Children in need

10. Section 17 of the Children Act 1989 imposes a duty on councils to provide services for children in need within their area, for the purposes of safeguarding and promoting their welfare, and promoting their upbringing by their families.
11. Children in need may be assessed under section 17 of the Act by a social worker. The Council calls these “family assessments”. The assessments should determine whether the child is in need and the nature of any services required. The possible outcomes of a family assessment include:
• Referral for Early Help services.
• Immediate provision of child in need services under a child in need plan.
• Specialist assessment for a more in-depth understanding of the child's needs and circumstances.
12. Where the council decides to provide services, a multi-agency child in need plan should be developed which sets out which organisations and agencies will provide which services to the child and family. The plan should set clear measurable outcomes for the child and expectations for the parents.

Children’s statutory complaints procedure

13. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage two of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by a panel, which should be held within 30 days.
14. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
15. Getting the best from complaints says the complainant or council may suggest alternative dispute resolution, but this does not restrict the complainant's right to request a stage three review panel. A complainant can terminate a resolution process and request a stage three review once the final date of the resolution process is agreed.

What happened

16. Ms S is the mother of T who has autism, mental health disorders and very complex needs. T has received a service from the Child and Adolescent Mental Health Service (CAMHS) since 2014, at the age of 6. She attends a special school and has an Education, Health and Care Plan. T regularly displays aggressive and violent behaviour towards family members, causing injuries to herself and others, and damaging property.
17. In May 2015, a family assessment was started because of the risk of family breakdown. In September 2015, the assessment concluded that T was a child in need requiring services, including support in the home to reduce T’s aggressive behaviour and the risk of family breakdown. Funding was agreed to provide 48 hours per month of respite and a referral was made for 40 hours per month respite foster care. The Council also commissioned a charity to provide eight hours per month sessional respite.
18. The Council approached nine potential foster carers. Seven of these decided that they could not offer a placement to T. Two decided not to go ahead after introductions, one for personal reasons and one due to T's challenging behaviours.
19. T started at her specialist school in January 2016. Ms S says she gave up work in April 2016 as she was struggling to support T at home without respite.
20. Ms S complained to the Council in November 2016 about the lack of progress in providing what was set out in the child in need plan. She also had concerns about T’s violent behaviour at home and said the support being provided by the Council was inadequate. The Council did not uphold her complaint.
21. A carer was identified in January 2017 and respite went ahead in February and March 2017. An updated family assessment said the Council would continue to provide respite support and re-assess T’s needs following her specialist health assessment.
22. In February 2017 the charity withdrew its support as it was unable to find suitable workers. The respite foster carer withdrew after March 2017 as she did not consider she could meet T's needs.
23. The Council discussed direct payments with Ms S in May 2017 as an alternative way of meeting T's needs. It also offered to refer to the Family Group Conferencing Service. Ms S says it was not possible to pursue these as no suitable carer could be found.
24. The Council says that since then it has approached a further thirteen carers, but none were able to provide a service to T. In November 2018 the Council agreed with Ms S to provide direct payments to fund home-based respite. In February 2019, the Council approved Ms S's preferred respite provider to provide support for 16 hours per month during term time and 32 hours per month during school holidays.

Ms S’s complaint

25. Ms S complained to the Council in May 2017 that:
1. The social worker failed to respond to her emails reporting significant incidents as agreed.
2. (i) The social worker failed to visit T and meet with Ms S at the agreed frequency (of fortnightly 1:1 meetings with T and monthly 1:1 meetings with Ms S) from November 2016.

(ii) The social worker did not ‘check in’ with her when the respite foster carer and charity support was withdrawn.

3. There was a lack of accountability within Children’s Social Care.
4. The Council had failed to improve the outcomes for T and the family or to reduce risk since 2015.
5. An officer had failed to support Ms S with T’s psychiatric presentation prior to further assessment.
6. An officer had made flippant and false comments

(i) Ms S was concerned that (named officer) said T was ‘ok in school, ok with me and ok with CAMHS’, when discussing T’s behaviours outside of the home and in relation to what information would be provided from professionals as part of the pending psychiatric assessment.

(ii) Ms S was concerned that (named officer) changed the focus of a meeting from school developing a greater understanding of T’s visual and auditory hallucinations to ascertain how they could support both T and Ms S to a discussion about whether T needed an in or an outpatient psychiatric assessment.

7. The Council had normalised child to parent violence.
8. There had been a lack of respite provision, despite funding having been approved in October 2015.

(i) The approved overnight respite with a foster carer did not commence until January 2017 and had broken down in March 2017.

(ii) The charity withdrew its support, which at times was a 2:1 ratio, in February 2017.

(iii)There was no provision in the holidays to enable Ms S to have continued with her employment at the time or return to work.

26. The Council upheld her complaints but Ms S was dissatisfied with the response and asked for the complaint to be escalated to Stage Two of the statutory process in May 2017. The Council refused as it did not consider further investigation would produce a different outcome. Ms S approached the Ombudsman. We asked the Council to progress the complaint to Stage Two in October 2017.
27. In November 2017 the Council offered a resolution to Ms S, including a payment of £1,000 for the time, trouble and distress she had been caused by having to bring a complaint. Ms S declined the resolution and asked to proceed to Stage Two. The investigating officer’s report was issued in February 2018. The investigation upheld two of Ms S’s eight complaints and made no finding on two others. The report recommended a payment of £200 to Ms S for the injustice caused by the social worker not responding to her emails.
28. Ms S asked to escalate to Stage Three in March 2018. The Stage Three panel in November 2018 upheld five of the complaints. The Council wrote to Ms S in December 2018 accepting the Stage Three panel’s findings. It apologised and offered to make a payment of £200 to Ms S. Ms S complained to the Ombudsman.

My findings

29. If a council has investigated something under the children’s social care complaints procedure, the Ombudsman would not re-investigate the complaint unless we consider the independent investigation was flawed. I have therefore firstly considered whether there was any fault in the way the Council carried out the Stage Two investigation.
30. The Council appointed an investigator who had had no previous involvement with the matter. The independent investigator agreed a statement of complaint with Ms S. The investigation took account of evidence from a range of sources and addressed each of the complaints in detail. I note that the Stage Three review panel found some of the complaints had not been fully considered or investigated at Stage Two. However, the report shows the investigator weighed the evidence and drew her own objective conclusions from it. The report is comprehensive and makes relevant recommendations. The investigation was overseen by an independent person who was content with the conclusions. A review panel considered the adequacy of the Stage Two investigation and reached findings on the complaints. Having considered all the information available to me, I find the investigation was carried out in line with the complaints guidance. I have therefore not re-investigated the whole matter.
31. My role therefore is to look at whether the Council properly considered the findings and recommendations of the independent investigation and the Stage Three review panel. I have also considered whether there was any fault or injustice that was not identified by the independent investigator or the Stage Three panel. I have dealt with each part of Ms S’s complaint separately.

(a) The named officer failed to respond to emailed reports of significant incidents as agreed.

32. The Council has accepted the Stage Two investigation findings that there was fault and has apologised. Whilst it caused Ms S frustration and to feel unsupported by the Council, there is no evidence that responding to the emails would have minimised the risk to Ms S or tackled T’s behaviours. I therefore consider an apology is a proportionate remedy for the injustice caused.

(b) (i) The named officer failed to visit T and meet with Ms S at the agreed frequency of fortnightly 1:1 meetings with T and monthly 1:1 meetings with Ms S from November 2016.

33. The Council has accepted this was fault and has already apologised. Given what Ms S has said about the failure of the Council to improve outcomes and reduce risks, on the balance of probabilities I consider meeting as agreed would not have affected the outcomes for Ms S or T, as it would have been unlikely to change T’s behaviour or give Ms S any further help in managing T’s behaviour. I therefore consider an apology is a proportionate remedy for the injustice caused

(b) (ii) The named officer did not ‘check in’ with her when the respite foster carer and charity support was withdrawn

34. The Council did not keep to its agreement, which is fault and the Council has already apologised. Ms S did not feel supported by the Council, which caused her distress. However, even if the social worker had ‘checked in’ I cannot say, even on the balance of probabilities, this would have changed outcomes for Ms S or T, as the social worker could not have found additional support quickly when other sources were unavailable. Because of this, no further remedy is appropriate.

(c) A lack of accountability within Children’s Social Care

35. I agree with the Council’s view that this point was not a complaint.

(d) Failure to improve outcomes for T and the family or to reduce risk since 2015

36. The Stage Two investigation accepted that the social worker’s interventions had not resulted in improvements in T’s behaviour. The Stage Three panel upheld the complaint, but the Council did not accept it had been at fault. It said it could not prevent or reduce direct physical harm or visit immediately if there was a crisis. Changing T’s behaviour was not something Council officers could have achieved.
37. The Ombudsman cannot say what support and interventions T required and cannot criticise decisions by professional officers to provide particular strategies. Therefore is, whilst it is unfortunate the interventions were not successful, this was not caused by administrative fault by the Council.

(e) Named officer’s failure to support Ms S with T’s psychiatric presentation prior to further assessment

38. Ms S believed that support for herself and T should be based on T’s presentation, rather than on clinical diagnoses of particular mental health conditions. The named officer disagreed and said it would not be helpful for T to be “labelled” without a clinical diagnosis. The complaint was not upheld.
39. Social workers are entitled to hold professional opinions and exercise judgement. Disagreement between Ms S and the named officer about the best way to support T is not evidence of maladministration or service failure by the Council. I therefore do not find fault.

(f) Flippant and false comments made by a named officer

40. Ms S was concerned about the officer’s approach in a meeting with the school and said the officer had tried to change the focus of the meeting. The Stage Three panel considered the complaint had been ‘insufficiently investigated’ at Stage Two as the investigating officer had not asked the headteacher for their view.
41. I consider this is a personnel matter. We consider the Council as a corporate body so do not consider complaints against named officers. The Council should follow its personnel procedures. I would not expect it to share its findings with Ms S or with me.

(g) Normalisation of child to parent violence

42. Ms S complained the Council’s actions minimised the impact the violent incidents had on herself, T and the rest of the family, and affected the level of service provided. The Stage Two investigation noted the Council had little room for manoeuvre, given Ms S did not want T to be accommodated away from home and the Council did not consider it could ask a court to issue a care order.
43. The Stage Three panel upheld the complaint. It considered communications with Ms S should have been addressed, visits completed, and the Council should have worked more with Ms S. The Council has apologised. I consider that to be an appropriate and proportionate remedy for the distress caused.

(h) Lack of respite despite funding having been approved in October 2015

44. In October 2015 the family assessment determined T was a child in need and required 48 hours of respite each month. This requirement was confirmed in an updated assessment of February 2017.
45. The Council has accepted the Stage Three review’s findings that respite was not provided and therefore the complaint was upheld. The evidence I have seen shows no respite care was provided from October 2015 to January 2017, and from April 2017 to February 2019. This is a total of 39 months.
46. In February 2019, the Council started to fund respite care for 16 hours per month during term time and 32 hours per month during school holidays. This is not in line with the September 2015 assessment.
47. The Council made considerable efforts to find a suitable foster carer, including approaching out of county and external foster agencies, but none could offer a service to T. It said that when the placement broke down in March 2017, it was apparent that respite foster care was not a suitable option for T. It considered it was unlikely such provision would have succeeded even if a carer had been found. It therefore discussed the possibility of direct payments if Ms S could find a suitable carer, but these were not a possibility.
48. T had been assessed as a child in need requiring support. Once the Council determined the proposed support would not be suitable, it was fault for the Council not to have reviewed the child in need plan to ensure that the services proposed were contributing to the achievement of the objectives. Whilst I acknowledge the Council considered some alternatives in May 2017, these were not suitable. The Council should have issued a revised child in need plan, offering different support strategies.
49. In our previous draft decisions, we also said it was fault by the Council not to provide the respite services set out in the child in need plan.
50. In response the Council said there had been no maladministration because, whilst the respite was not provided, it had made significant efforts to provide it. The Council argued that the Ombudsman had not considered the reasons it could not provide the service and had not said why those efforts were not sufficient, or whether there were valid reasons for not providing the service. The Council said the Ombudsman had not defined service failure or explained what standards it applied before deciding there was fault. The Council did not agree that not providing a service equated to fault.
51. The Children Act 1989 imposes a duty on councils to provide services for children in need. Once the Council had assessed T as a child in need and had developed a child in need plan, it was under a statutory duty to provide the services in the plan. Whilst I accept there were good reasons it was not possible to provide the services, a failure to provide a service to meet an assessed need is fault.

Did the fault cause injustice?

52. I have gone on to consider the injustice caused to Ms S and T by this service failure.
53. Ms S said she had to give up her employment in April 2016, due to the ongoing challenging situation T’s behaviours caused and the lack of overnight respite. She provided evidence to the Ombudsman of many and significant violent incidents that she suffered.
54. It is not possible to say that those incidents would not have occurred if T had had respite care. Nonetheless, Ms S was left in a difficult situation, without the benefit of a service T was entitled to for a prolonged period from October 2015 to February 2019. This is her injustice.
55. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the impact of a loss of non-monetary benefit (such as education or amenity).
56. Our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. I have instead considered the impact on T and Ms S of missing out on services and the significant distress caused to Ms S.
57. Our guidance on remedies does not provide an exact comparison. However, where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month. Where fault has caused a complainant to be deprived of adaptations which would have improved his or her daily life, we will usually recommend a remedy payment in the range of £150 to £350 a month. Given these examples my view is that the Council should make a payment to Ms S of £200 for each month T was without respite from October 2015 to February 2019, totalling £7,800.
58. In response to the draft decisions Ms S said an apology was not sufficient to remedy the injustice caused by the faults identified in paragraphs 31 – 33 and 42. The payment the Council has agreed to make acknowledges the distress caused to Ms S and T.

The Council’s complaints handling

59. Ms S asked for her complaint to be escalated to Stage Two of the statutory procedure in May 2017. The Council refused on the grounds it considered further investigation would not achieve a different outcome. This is fault. The statutory guidance is clear that a complaint should move to Stage Two if a complainant requests it. This fault caused a delay, resulting in time and trouble for Ms S as she had to approach the Ombudsman to progress the complaint.
60. In October 2017 we asked the Council to start a stage two investigation. The Council agreed but delayed doing so because it instead proposed a resolution to Ms S. Ms S declined the resolution as it was to only consider the broad themes of her complaints rather than her specific concerns.
61. Whilst it is helpful to try to seek a resolution, there was fault because the guidance says alternative dispute resolution should not be used ahead of a Stage Two investigation, though it might be proposed prior to a Stage Three Panel. The resolution offer therefore caused a delay in appointing the investigating officer, though I do not consider that delay to have caused a significant injustice to Ms S.
62. There was further delay progressing the case to Stage Three. Ms S requested this on 13 March 2018, the Panel should therefore have been held by mid-April but was not convened until November 2018.
63. There is inevitably time and trouble involved in bringing a complaint. But the Ombudsman will only seek a remedy when fault in complaint handling meant the complainant incurred time and trouble above what is considered usual. The Ombudsman’s guidance on remedies suggests a remedy payment for time and trouble should be between £100 and £300, depending on the vulnerability of the complainant.
64. Ms S complained to the Ombudsman about the way the Council had considered the findings of the complaint investigations. Prior to Stage Two the Council offered Ms S £1,000 as a remedy. At the end of Stage Three the Council reduced the offer to £200. Ms S complained this was wrong, as more of her complaint had been upheld following Stage Three. Ms S felt she was being penalised for asking the Council to follow the statutory complaints process. Ms S told the Stage Three panel she thought £5,000 would be more appropriate.
65. Ms S declined the resolution offer and progressed through the statutory complaints process. The guidance says councils should consider the Stage Two and Stage Three’s findings and recommendations. The council then decides what action to take. It was therefore not fault for the Council to accept the Stage Two recommendation, which was a payment to remedy injustice caused by not responding to Ms S’s emails. I have set out my views on other injustice caused to Ms S and how the Council should remedy this in paragraphs 51 to 56.

Agreed action

66. To remedy the injustice caused to Ms S, the Council has agreed to, within a month of the final decision:
1. Pay Ms S £7,800 to acknowledge the impact of a loss of a non-monetary benefit for 39 months.
2. Pay her £200 for the avoidable time and trouble caused by delay in progressing to Stage Two and Stage Three of the statutory complaint procedure.

Within three months of the final decision:

3. Review T’s child in need plan to determine what support is necessary and appropriate and put it in place
4. Review its children’s social care complaints procedures to ensure they reflect the statutory guidance on progressing to Stage Two where complainants are unhappy with the Stage One response, and on engaging in alternative dispute resolution methods following Stage Two rather than Stage One.

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Final decision

67. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman