Oxfordshire County Council (19 002 372)

Category : Children's care services > Disabled children

Decision : Upheld

Decision date : 01 Nov 2019

The Ombudsman's final decision:

Summary: Mrs X’s complaint was investigated through the statutory children’s complaints procedure. Fault was identified and recommendations made. Mrs X complains about the Council’s financial remedy offer. She says the amount offered by the Council was not representative of the injustice caused. The Ombudsman finds the Council had not properly considered the impact of the Panel’s views that the Council had been discriminatory at times. The Council has agreed to pay Mrs X a larger financial remedy.

The complaint

  1. The Council investigated Mrs X’s complaint through the statutory children’s complaints procedure. Fault was identified at stage two and three, and recommendations made. The Council offered Mrs X £200 to recognise the additional distress caused by the faults identified. Mrs X complains about this offer. She says the amount offered by the Council is insulting and not representative of the injustice caused. She also complains the Council’s policy for providing post-operative care is vague and unfair.

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The Ombudsman’s role and powers

  1. 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)

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

  1. I spoke with Mrs X and considered the information she provided.
  2. I made enquiries with the Council and considered the information it provided.
  3. I sent a draft decision to Mrs X and the Council and considered their comments.

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What I found

Statutory children’s complaints procedure

  1. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. 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.

Guidance on Remedies

  1. The Ombudsman has published a guidance on remedies. It notes that we can recommend a remedy for distress. However, the guidance is clear that it must be avoidable distress arising from fault.
  2. Our recommendation for a remedy needs to reflect all the circumstances, including the severity of the distress.
  3. The guidance sets out that a remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1000 may be justified.

What happened

  1. Mrs X first applied to the Council for post-operative support for her daughter in 2017. Mrs X made several complaints about the Council’s handling of the matter.
  2. The Council considered Mrs X’s complaint through the statutory children’s complaints procedure. The stage two investigation started in June 2018, with the final report issued in October 2018. Mrs X asked the Council to escalate her complaint to stage three in November 2018. The stage three panel was held in April 2019.
  3. Some of Mrs X’s complaint were upheld. The findings from the stage two and three complaints procedure are summarised below.
  • The Council had advised Mrs X about children social care having the power to remove children from their parent’s care. The stage three panel found this unnecessary and inappropriate as the meeting with Mrs X was to discuss the child’s post-operative care needs.
  • Staff within the disabled children’s team lacked knowledge of alternative funding streams.
  • The Council’s response to one of Mrs X’s complaint during stage one was dismissive.
  • The Council had restricted Mrs X’s access to email communications.
  • The Council took an unhelpful approach to Mrs X’s request for support as it focused on limited resources and budget restraints.
  • The Council had not explained that means testing was part of the process and the Council had suggested that Mrs X take out a loan to pay for her child’s care needs.
  1. The stage three panel also highlighted its view that the Council was at times, obstructive and discriminatory. This was because the Council had decided Mrs X would need to be means tested before any further support for her daughter could be considered. The Panel said this was not set out in any policy or guidance.
  2. The stage three panel recommended the Council consider providing Mrs X with financial compensation. It stated the financial remedy should be proportionate to the extra distress caused to Mrs X by the faults identified. The distress should be over and above the distress inherent in the circumstances of their case.
  3. The Council offered Mrs X £200 to recognise the extra distress caused by the faults identified. The Council explained it offered this after considering the Ombudsman’s guidance on remedies. Mrs X said this amount did not reflect the injustice caused.
  4. As part of my enquiries, I asked the Council to expand on the panel’s views that the Council had been, at times, discriminatory. The Panel explained it formed this view because it was not standard practice for the Council to ask parents to take out a loan. The Panel said the Council’s decision to ask Mrs X to take out a loan was biased and focused on the Council’s limited resources and budget constraints, rather than on the child
  5. The Panel also said it felt the Council’s failure to ensure Mrs X’s daughter was at the centre of the consideration for the provision of services was discriminatory towards the child.
  6. The Council did not comment on the panel’s view that it had been discriminatory at times in its adjudication letter. The Council said its view was the word ‘discriminatory’ was used by Mrs X to describe how she felt she was being treated. The Council said Mrs X felt discriminated against in terms of their financial situation as it was suggested she could afford to pay privately, or take out a loan, for the additional services she asked for.
  7. The Council said it did not feel the Panel had been explicit in their report about why they formed the view the Council had been at times discriminatory. The Council said this was why it had not challenged the view.

Council’s policy - post operative care for children

  1. Since Mrs X’s complaint, the Council has produced a “short breaks and support in the home services for families with disabled children” policy. The Council confirmed it had made all relevant staff aware of the policy.
  2. The policy covers support at home following major surgery for a severely disabled child. The section highlighted parents are responsible for the care children need when they are at home recovering from surgery. The policy said the Council can provide some funded support following a social work assessment.
  3. It noted the care offered was usually up to 10 hours a week for up to six weeks. The policy also said the Council could offer extra care beyond this if the child’s recovery was prolonged and if the parents could evidence they cannot afford to fund the extra care themselves.

Analysis

  1. I have reviewed the stage two report and stage three review. I am satisfied the stage two investigation was robust and considered relevant information. Equally, I am satisfied with the way the stage three review was conducted. Therefore, I consider it appropriate to rely on the findings reached at stage two and three and I have not reinvestigated the matters. My role is to look at whether the Council properly considered the recommendations made by the stage three panel.

Financial remedy offer

  1. It is important to highlight that due to the circumstances, it is reasonable to state that this matter would have likely to have already been distressing for everyone involved. Our guidance on remedies is clear that financial payments are made to recognise additional distress caused by the faults identified. Therefore, I must only consider the additional distress caused by the faults identified.
  2. I am satisfied the faults identified at stage two and three would have caused Mrs X distress. I must now consider whether the Council’s remedy offer of £200 reflects the severity of the distress caused.
  3. Of significance is the fact the Panel highlighted its views the Council was, at times, discriminatory. In my opinion, the Panel has not clearly outlined its reasons for this decision in the stage three report. Nevertheless, the panel had expressed this view and it is a relevant consideration.
  4. Based on the evidence available, it appears the Council has not considered the finding about the Council being discriminatory at times when it considered its financial remedy offer. This is because the Council thought the Panel had been referring to the fact Mrs X felt discriminated against because of her financial situation, rather than any protected characteristics. I agree with the Council that the wording of Mrs X’s complaints suggests she felt discriminated against due to her financial situation, rather than because of any protected characteristic.
  5. However, whether the finding was about discrimination against a protected characteristic is not relevant. The important consideration is the fact Mrs X felt discriminated against, and that the Panel upheld her complaints about discrimination. This is because any finding of discrimination will increase the severity of distress.
  6. Therefore, I am not satisfied the Council has properly considered the impact of the Panel’s view the Council had been discriminatory at times. I am of the view the Council’s financial remedy offer does not reflect the severity of the distress caused to Mrs X.

Council’s policy - post operative care for children

  1. Mrs X said this policy is vague and unfair. The policy sets out that parents are responsible for the care children need when they are recovering from surgery.
  2. The policy sets out that support may be provided following a social work assessment if the child will be off school for some weeks. The policy also states the support offered is usually up to 10 hours a week for up to six weeks. Therefore, I am satisfied the Council’s policy is clear.
  3. Mrs X says the policy is unfair. There is no legislation or guidance that deals specifically with the issue of post-operative care for children. Therefore, the Council was entitled to form its own policy around the issue.
  4. The Ombudsman cannot tell the Council what to include in its policy, unless the policy is in breach with legislation or guidance.

Agreed action

  1. To remedy the injustice caused by the faults identified within the stage two and three complaint procedure, the Council has agreed to:
  • Pay Mrs X £1000 in recognition of the distress and frustration caused by the faults identified by the stage two investigation and stage three review.
  1. The Council should complete the remedy within four weeks of the final decision.

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Final decision

  1. I find that the Council had not properly considered the impact of the Panel’s views that the Council had been discriminatory at times. The Council’s financial remedy offer to Mrs X therefore does not reflect the severity of the distress caused to her. The Council has accepted my recommendation. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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