Summary: Mr X complains about the Council’s decision to change the eligibility criteria for its short breaks services. The new policy means only Council residents can access the services. He also complains about the Council’s handling of the complaint. The Ombudsman finds no fault with the way the Council considered its decision.

The complaint

1. Mr X complains about the Council’s decision to change the eligibility criteria for its short break services. The new policy means only Council residents can access the short breaks services. Mr X’s granddaughter attends a special education school in the area but is resident of a different council area. Mr X is unhappy his granddaughter can no longer attend the short break schemes she attended for 13 years. Mr X also complains about the Council’s handling of the complaint.

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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 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)
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 spoke to Mr X and considered the information provided.
6. I considered the information provided by the Council.
7. I sent two draft decisions to Mr X and the Council and considered their comments.

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What I found

Equality Act 2010

8. Section 149 of the of the Act sets out the public sector equality duty. This duty has three aims, it requires public bodies to have due regard to the need to:

• eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Act;
• advance equality of opportunity between people with a protected characteristic and people without;
• foster good relations between people with a protected characteristic and people without.

9. Having due regard means consciously thinking about the three aims of the Equality Duty as part of the process of decision making. This means considerations of equality issues must influence the decisions reached by public bodies.

Short breaks for carers of disabled children: departmental advice for local authorities

10. This is non-statutory guidance which gives advice to help local authorities (councils) understand how to fulfil their duties under the Children Act 1989 and the Breaks for Carers of Disabled Children Regulations 2011.
11. Section 4 of the guidance notes councils should consider the Chronically Sick and Disabled Persons Act 1970 and the Children Act 1989, when applying eligibility criteria to short breaks services for disabled children.
12. Section 2 of the 1970 Act imposes various duties on local authorities towards disabled people of all ages. It requires councils to consider whether it is necessary to provide services to meet the needs of a disabled person. Section 17 of the 1989 Act sets out the general duties and powers given to councils to provide family support services to children within their area who are in need. The law recognises disabled children as children in need.
13. The guidance notes there is overlap between the services councils can provide under the 1970 and 1989 Acts. The difference is that under the 1970 Act, once the local authority has assessed there is a need for services, it has a duty to provide those services. Services local authorities provide under the 1989 Act are discretionary.
14. The guidance highlights that local authorities can provide families with access to short breaks services without any assessment. These are often achieved through a ‘local offer’ of disabled children’s services, to which families with disabled children refer themselves.
15. Local authorities who provide access to services through a local offer must think through their criteria for access to it. For example, it is no good only allowing access to children who attend special school as some families will have opted to send their child to mainstream school. Eligibility criteria should be applied with some flexibility in order to ensure fairness to all potential beneficiaries.
16. The guidance also notes councils should ensure that those who use short breaks services have the chance to shape the development of those services. This means carers and children and young people should be involved in the decision making about the nature of services and their relative priority.

Background

17. Mr X’s granddaughter, A, has an Education, Health, and Care (EHC) plan. The plan is maintained by a different council. She has attended her special education school since 2006.
18. The Council commissions its short break services. This means another organisation administers the services on behalf of the Council. A’s school provides these services, which it calls playschemes, with three other organisations.

What happened

19. In April 2018, the Council started the process to recommission its short breaks and playscheme services. Between April and June 2018, the Council completed a consultation with service users, service providers, parents and carers, and others.
20. Following these consultations, the Council identified that short breaks services oversubscribed and not available for many parents and carers.
21. The Council drafted a specification of the short breaks and playscheme which restricted access to residents. The Council completed further consultation on this draft in July 2018. Those consulted were satisfied with the proposed specification and eligibility criteria. The Council recommissioned the service in July 2018.
22. In January 2019, the Council said the organisation commissioned sent a letter to parents and carers advising of the change of eligibility criteria. The Council also provided the organisation with information to share with families who would no longer be eligible to access the short breaks provision. This was to help them to transition to alternative provision.
23. Near the end of March 2019, Mr X contacted the Council as he was unhappy A would no longer be able to access the playscheme she had attended for 13 years. Mr X said he was passed around several people and was not able to speak with anyone about the matter.
24. Mr X said a Council officer called him the next day to discuss A being excluded from school. Mr X said this showed the Council officers he spoke with the day before had not passed on the correct information. The Council officer said he would send Mr X an email with the contact details of the appropriate person to speak with. Mr X said he did not receive an email, so he made a complaint. This was five days after Mr X first contacted the Council.
25. Mr X complaint highlighted that because of A’s disabilities, familiar places and faces were important to her wellbeing. Mr X felt the Council had not considered this when it made its decision.
26. Mr X was also concerned that children without disabilities, but who were residents, had priority over disabled children who were not residents. Mr X says as the short breaks provision was for a special needs playscheme, places should be allocated to children with special needs first.
27. The Council wrote to Mr X in April 2019 with a summary of his complaint. The Council asked Mr X to confirm if the complaint summary was accurate. Mr X contacted the Council at the beginning of May to confirm he was not happy with the summary of his complaint. He provided the Council with further information. The Council said it would respond to his complaint by the end of May 2019.
28. The Council responded to Mr X’s complaint in early June 2019. The Council explained it decided to restrict access to services to children who resided within the area because it had no resources to continue to subsidise access to services for non-resident children. The Council said it had communicated the change in eligibility criteria as part of its consultation process.
29. The Council said it recognised the change would be unsettling for A, especially as she had accessed the scheme for many years. The Council said it had agreed to admit out of area applicants if there were spaces on the scheme. The Council confirmed there was a space for A on the next holiday scheme (A did attend this scheme). The Council also confirmed it would consider A for future schemes.
30. Mr X was not happy with the Council’s response and asked the Council to take his complaint to stage two in July 2019. The Council responded to the complaint in August 2019. The Council said it had acted properly by consulting stakeholders before it recommissioned the short break services.
31. The Council also explained it had provided enough notice to allow those affected to make alternative arrangements. The Council said it had considered A’s circumstances and will try to give her a place at the playscheme where possible in the future.

Analysis

32. The role of the Ombudsman is to review whether the Council made its decision properly. By this I mean whether the Council, in making its decision, followed the correct process and had regard for its statutory duties.
33. The Council does have a duty towards disabled people. These duties are set out within the Chronically Sick and Disabled Persons Act 1970 and the Children Act 1989. The legislations states councils must consider whether it is necessary to provide services to meet the needs of a disabled person, or child in need, who is normally resident in their area. This means the Council only has a duty towards residents within its area.
34. Further, it is relevant to note the playschemes A accessed are part of the Council’s ‘local offer’. This means the Council had not assessed A as needing the service. Therefore, the Council does not have a duty to provide the short breaks service to A.
35. The evidence shows the Council followed the correct process when deciding to change its policy. The Council completed appropriate consultations and gave those affected enough notice to allow them to make alternative arrangements. These actions were in line with guidance.
36. I understand Mr X’s view that A should have priority over non-disabled children, even though she is not a resident. However, the Council must consider its public sector equality duty. The law states councils must have due regard to advance equality of opportunity between people with a protected characteristic and people without.
37. Further, guidance states councils should think through their criteria for access to their services. It notes that it is not good to only allow access to children who attend special school as some families will have opted to send their child to mainstream school. It states councils should apply the eligibility criteria with some flexibility to ensure fairness to all potential beneficiaries.
38. In this case, the evidence shows the Council has applied flexibility. This is because the Council said it will consider A for future schemes when places are available. Indeed, A attended a playscheme after the new policy was implemented which shows the Council did use its discretion and flexibility.
39. Therefore, the evidence shows the Council has properly considered its decision. Further, I consider the decision made to be in line with legislation and guidance. As the Council has properly considered its decision, I cannot find fault with the decision itself.
40. Mr X said the Council’s service at the time he tried to contact it was appalling. The evidence shows it was difficult for Mr X to speak with a relevant officer. The Council also said it would contact Mr X but then did not do so. This is unfortunate. However, I do not consider this to be fault because the delays were minor. Further, Mr X was able to put in a complaint which was dealt with by the Council.
41. It is clear there was a delay in the Council responding to Mr X’s complaint. The delay was around a week. I consider this to be a small delay and therefore, I do not consider this to be fault.

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Final decision

42. I find no fault with the way the Council considered its decision. As I have found no fault in the way the Council considered its decision, I cannot find fault with the decision itself. I also do not find fault with the Council’s handling of Mr X’s complaint. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman