London Borough of Havering (19 005 362)

Category : Children's care services > Disabled children

Decision : Upheld

Decision date : 10 Jul 2020

The Ombudsman's final decision:

Summary: Mr and Mrs B complained the Council failed to provide their daughter with a suitable home chair, wrongly began a safeguarding investigation and delayed responding to a complaint. Delays providing the home chair were not due to fault by the Council. A single assessment completed by the Council was inaccurate and the Council delayed responding to Mr and Mrs B’s complaint. That led to Mr and Mrs B having to go to time and trouble to pursue their complaint and caused them distress. A payment to Mr and Mrs B and an apology is satisfactory remedy.

The complaint

  1. The complainants, whom I shall refer to as Mr and Mrs B, complained the Council:
    • failed to provide their daughter with a suitable home chair;
    • wrongly began a safeguarding investigation; and
    • delayed responding to their complaint.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. 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, section 26(1) and 26A(1) as amended and section 34(3))
  2. 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. As part of the investigation, I have:
    • considered the complaint and Mr and Mrs B's comments, photographs, videos and documentary evidence;
    • made enquiries of the Council and considered the comments and documents the Council provided.
    • Mr and Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  2. 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

Background

  1. Mr and Mrs B’s daughter has Down syndrome, autism and complex needs. As part of her provision she has a moulded chair to provide her with support when sitting, along with posture equipment.
  2. Mr and Mrs B’s daughter underwent spinal surgery in 2017. The Council discussed the suitability of the existing home chair with Mr and Mrs B and their daughter in April 2018. Mr and Mrs B raised concerns about their daughter’s posture in the chair. An occupational therapist, physiotherapist and a representative from the manufacturer of the current chair visited the family in May 2018. The manufacturer of the current chair agreed to try out an alternative cushion. When that was provided later in May 2018 it appeared to meet Mr and Mrs B’s daughter’s needs. At that point the Council was waiting for the outcome of an MRI scan before considering the seating further.
  3. In July 2018 the occupational therapist discussed with Mr and Mrs B various seating options. A new manufacturer was chosen for the seating and the manufacturer carried out moulding. Following that the Council placed an order for the chair which Mr and Mrs B received in October 2018. The occupational therapist reviewed the chair in November 2018 and raised concerns about the chair providing too much sensory feedback. The Council agreed to look for an alternative chair.
  4. In January 2019 an occupational therapist visited with a representative from the chair manufacturer and agreed a remould. Moulding took place later that month and the occupational therapist noted the remould was satisfactory. The Council placed an order.
  5. Mr and Mrs B raised concerns about discolouration of their daughter’s feet in January 2019. The occupational therapist suggested Mr and Mrs B seek a referral to the hospital as she was not convinced the issue with the feet resulted from the chair issues given many chairs had been trialled, including shower chairs, which did not relieve the problem.
  6. In January 2019 Council’s social worker completed a single assessment which recommended a child in need plan. The Council abandoned that assessment when NHS professionals raised concerns about its accuracy in February 2019.
  7. In February 2019 the Council sought authorisation to place the moulded chair onto the base for another chair. The Council received that authorisation and placed the order.
  8. The manufacturer visited with the occupational therapist to deliver the new chair in March 2019. The occupational therapist could not stay for the whole visit. After the occupational therapist left Mr and Mrs B tried to use the chair but it made a noise and shuddered. When the occupational therapist saw a video of the issues she said if she had seen the operation of the chair during her attendance at the visit she would have said the chair was unusable.
  9. Mr and Mrs B put in a complaint on 22 March 2019. Mr and Mrs B complained about the second chair, referring to it twisting in an exaggerated manner and making a distinctive clunking noise when trying to self correct. The Council asked Mr and Mrs B for clarification about the complaint as it appeared to relate mainly to the manufacturer. Mr and Mrs B provided clarification in April 2019. Mr and Mrs B also asked for an independent assessment of what had gone wrong with the chair. The manufacturer asked for return of the chair so it could investigate the issue. Mr and Mrs B later declined to allow the manufacturer to remove the chair.
  10. Mr and Mrs B asked the Council for an update on what was happening with their complaint in May 2019. The Council told Mr and Mrs B the service was investigating the complaint. In July 2019 the Council told Mr and Mrs B it would find it difficult to respond to the complaint while also seeking to resolve issues with the chair.
  11. An occupational therapist visited Mr and Mrs B and their daughter in July 2019 to consider the seating. The Council agreed for an alternative manufacturer to visit to progress suitable seating. A visit took place later in July. The Council ordered the new chair in September 2019.
  12. The Council responded to the complaint on 30 September and apologised for the delay.
  13. The manufacturer delivered the new chair at the beginning of October 2019. Mr and Mrs B raised concerns about its construction and positioning of the footplate. Mr and Mrs B said their daughter could not access the chair safely due to the construction of the footplate. Mr and Mrs B also said their daughter’s head position was detrimentally affected by the chair set up. Mr and Mrs B raised concerns about the chair not providing for leg raising. The Council agreed to order some accessories to resolve some issues and agreed to request a higher back to the chair.
  14. Following discussion with the NHS later in October the new chair was deemed inappropriate. Mr and Mrs B agreed with the professionals that going forward the NHS would seek to resolve the issues with the wheelchair and then, once it had identified a suitable wheelchair, the Council would use that as a base guide for the home seating. The NHS provided a wheelchair in February 2020 and further adaptations are planned in light of its performance.

Analysis

  1. Mr and Mrs B say the Council failed to provide their daughter with a suitable home chair following her spinal surgery. Mr and Mrs B say the Council repeatedly provided chairs which do not provide for their daughter’s needs which means she cannot sit at the dining room table with her friends.
  2. The evidence I have seen satisfies me Mr and Mrs B’s daughter has complex needs and because of those needs there is no ready-made chair available which is suitable for her. As a result, the Council has had to spend time, with the occupational therapist and various chair manufacturers, to assess what Mr and Mrs B’s daughter needs before arranging for a custom-made chair to be provided. I understand why Mr and Mrs B would have wanted the Council to sort that out quicker than has proved possible. However, I do not consider the difficulty the Council has had identifying and providing a suitable chair is because of fault. Rather, I am satisfied the difficulty providing a suitable chair has resulted from the need to assess Mr and Mrs B’s daughter. That has included moulding and trial of various options to narrow down what is suitable. Given the NHS has had similar problems providing a suitable wheelchair for Mr and Mrs B’s daughter I am satisfied the issue relates more to the complex needs Mr and Mrs B’s daughter has. That means, unfortunately, the Council has to test various options to enable it to identify a suitable chair rather than it being able to identify a chair which is suitable. The delay identifying a suitable home chair has caused significant distress to Mr and Mrs B and impacted on their daughter. However, I do not consider that flows from fault by the Council but rather from the complexity of identifying a suitable chair.
  3. In reaching that view I am aware the way forward agreed with Mr and Mrs B is now for the NHS to resolve the issues with the wheelchair. Then, once a suitable wheelchair has been identified the Council will use that as a base guide for the home chair. I consider that a sensible way forward given the difficulty both the Council and NHS have had in identifying suitable seating arrangements for Mr and Mrs B’s daughter. I consider greater joined up working between the Council and the NHS would have been helpful earlier. However, I do not consider failing to do that warrants a finding of fault given I do not consider it unreasonable for the Council to try to resolve the home chair issue independently at first. The Council could not have known in May 2018 it would prove impossible to find a suitable chair set up for Mr and Mrs B’s daughter by the end of 2019.
  4. I recognise though Mr and Mrs B also have other concerns about the three chairs provided by the Council since May 2018. Mr and Mrs B say the Council knew about their daughter’s autism, that she rocks and knew about issues with her legs. Mr and Mrs B therefore say the Council should have known any chair provided needed to cope with their daughter’s rocking and provide for elevation of her legs. For Mr and Mrs B’s daughter’s rocking, I agree the Council knew of her autism. However, I do not consider that, on its own, should have put the Council on notice that any chair needed to withstand significant rocking. I also note that Mr and Mrs B have been involved at every stage of the process in discussions about the requirements for the three chairs the Council has provided. I have seen nothing in the documentary evidence to suggest Mr and Mrs B stressed the need for a chair which could withstand significant rocking during those discussions. I would have thought this would have been something Mr and Mrs B would have stressed had it been such a priority. In any event, it is clear to me all three chairs were rejected as unsuitable not just because of issues with Mr and Mrs B’s daughter’s rocking. So, I do not consider it likely earlier consideration of that issue would have resulted in a different outcome.
  5. For the need for the chair to have leg raisers, I have seen nothing in the documentary evidence to suggest this was identified as a requirement for the chair until after the Council had provided the second chair. As I said in the previous paragraph, Mr and Mrs B had also been involved at every stage in the development of the three chairs. So, again, I would have expected them to have highlighted that requirement had it been a priority. Without any documentary evidence to suggest it was identified as a priority before the Council provided the second chair I have no grounds to criticise the Council. In reaching that view I am aware Mr and Mrs B raised concern about their daughter’s leg turning blue following provision of the first chair. However, the Council was clear at that point that no matter what chair Mr and Mrs B’s daughter was sitting in she had the same reaction and therefore it needed investigation by medical professionals. There is nothing to show Mr and Mrs B suggested at that point the chair was unsuitable because it did not raise their daughter’s legs. As with the issue with rocking, it also seems to me all three chairs were unsuitable for Mr and Mrs B’s daughter based on issues other than rocking and leg raisers. So, even if the Council had taken those matters into account when discussing the arrangements for the various chairs with Mr and Mrs B and the manufacturers I do not consider the outcome would have been any different.
  6. I turn now to the issues Mr and Mrs B have raised with each of the three chairs provided since October 2018.
  7. For the first chair, provided in October 2018, Mr and Mrs B say it had five steps for their daughter to get into it when a physio report said her daughter could not manage stairs. In contrast, the Council says it provided the steps for the assessment of the chair only and they did not form part of the chair provision. The Council also says Mr and Mrs B did not raise concerns during that assessment about the use of steps. Having considered the documentary evidence it is not clear to me the chair provided following the assessment in October 2018 needed the use of steps, although I am aware the assessment for the chair included using steps. In any event, the Council’s documentary evidence shows the occupational therapist recorded on 30 October 2018 following a visit that Mr and Mrs B and their daughter were happy with the chair. The note records no issue about the chair needing steps to access. Indeed, I cannot see any reference to concerns about the first chair having steps until Mr and Mrs B complained in April 2019. In those circumstances I have no grounds to criticise the Council. I recognise it later became clear the chair was not suitable due to the sensory feedback it gave. However, as I said, I am satisfied this is due to Mr and Mrs B’s daughter’s complex needs. I am satisfied this meant that, unfortunately, the only way to identify a suitable chair was to assess and trial options. I have made clear that is not fault, although I recognise how frustrating it must be for Mr and Mrs B and their daughter.
  8. Mr and Mrs B received the second chair in March 2019. That chair used a moulded chair from one company placed on the base for a different chair provided by a different company. Mr and Mrs B say the manufacturer placed the base on the chair incorrectly which caused it to collapse. Mr and Mrs B are particularly concerned about that because if their daughter had been in the chair at the time of its collapse she could have been seriously injured. Mr and Mrs B have provided me with a video showing the issue with the second chair. That does not, in my view, show the chair collapsing. Instead, the chair was making a strange noise and shuddering but there is no evidence it collapsed. I further note in emails Mr and Mrs B sent to the Council about the problems with the chair they do not refer to the chair collapsing but instead refer to it making a noise and shuddering. That reflects the video evidence I have seen. I have seen no evidence though to suggest the Council knew there was a problem with the chair before it was delivered. I therefore have no grounds to criticise it.
  9. In reaching that view I note Mr and Mrs B say the occupational therapist wrongly said the chair was in working order when she left when it could not have been as they experienced problems with the chair shortly after. Having considered the documentary evidence I note the occupational therapist attended the visit when the second chair was delivered to Mr and Mrs B. However, it is clear she left before Mr and Mrs B experienced problems as described with the chair. I have seen nothing in the documentary evidence though to suggest the occupational therapist said the chair was in working order when she left. Rather, the occupational therapist merely referred to the fact she had not been present when the problems were experienced and, if she had been, she would have deemed the chair unusable.
  10. Mr and Mrs B say the manufacturer that produced the base for the chair completed a report which showed the chair had not been correctly attached to the frame, which is why problems were experienced. The report Mr and Mrs B have provided refers to the differences in seat mounting between the two chairs and identify issues that would create, although it does not specifically say the chair failed due to not being attached correctly as Mr and Mrs B suggest. I understand Mr and Mrs B’s concern about the way the manufacturer attached the new seat to an old frame, particularly as it did not work. The evidence I have seen though satisfies me it was the manufacturer, rather than the Council, that connected the seat and base together. I therefore could not say the Council was at fault here as I do not consider this is something the Council could have anticipated.
  11. For the third chair Mr and Mrs B say that chair is unsuitable because it cannot cope with their daughter’s rocking. As I said earlier in this statement, I am satisfied Mr and Mrs B were fully involved in discussing the requirements for the third chair, as they were for the previous two chairs. I have seen nothing in the documentary evidence to suggest anybody raised a concern that any chair would need to withstand significant rocking. I am satisfied though once Mr and Mrs B raised concerns about the impact of rocking after receiving the chair the Council agreed an appropriate way forward would be to allow the NHS to resolve the problems with the wheelchair provision and then use the knowledge from that to inform the development of a home chair. So, I am satisfied the Council took appropriate action at that point.
  12. It is clear though there were other issues with the third chair besides the issue of rocking. That included the height of the back of the chair, the lack of a chair pad and the positioning of the footplate which scrapes the back of Mr and Mrs B’s daughter’s legs. In terms of the chair pad, the third chair was provided without a pad because the pad was not available in time for the delivery. Mr and Mrs B though had a suitable pad from another chair which they could use on a temporary basis. The issue with the height of the chair and the footplate were more serious issues. I consider though that, as with most of the issues with the three chairs provided, part of the problem is a chair has to be developed based on Mr and Mrs B’s daughter’s requirements. As a result some element of testing is required to establish what does and does not work. I do not consider that fault. As I have also made clear, I am satisfied the Council has now taken appropriate action to allow the NHS to move forward with the wheelchair provision so it can use the knowledge gained from that to inform the provision of the home chair.
  13. Mr and Mrs B say the Council began a safeguarding investigation which concentrated solely on Mrs B and not their daughter. Mr and Mrs B say they felt persecuted as a result. It is clear the single assessment completed by the Council contained inaccuracies. I say that because I note NHS staff involved in Mr and Mrs B’s daughter’s care raised concerns about the report misrepresenting what the professionals had said and noting it had taken some comments out of context. In those circumstances I understand why Mr and Mrs B would feel unfairly dealt with. Failure to carry out a proper assessment is fault, although the injustice was mitigated by the fact the Council decided to abandon the assessment following comments from the NHS. It is clear this has caused Mr and Mrs B distress though.
  14. Mr and Mrs B say the Council delayed responding to their complaint. The evidence I have seen satisfies me Mr and Mrs B put in their complaint in March 2019. However, there is no evidence the Council responded until September 2019, more than six months later. The Council says it concentrated on trying to seek a resolution on the chair issues and it would have been difficult to respond the complaint while that took place. However, I see no reason why the Council could not have responded to the complaint given it concerned what had happened up to that point and would therefore not have been affected by ongoing efforts to resolve the issues with the chair. Failure to respond the complaint within the Council’s published timescales is fault. That is unlikely to have encouraged Mr and Mrs B’s to believe the Council was taking their concerns seriously and led to them having to go to further time and trouble to pursue their complaint. The Council has apologised for the delay, which I welcome.
  15. So, I have found fault as the Council failed to properly complete a single assessment, which caused Mr and Mrs B distress, and delayed responding to their complaints. I recommend the Council apologise and pay Mr and Mrs B £250 to reflect their distress and time and trouble in pursuing the complaint. The Council has agreed to my recommendation.

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Agreed action

  1. Within one month of my decision the Council should:
    • apologise to Mr and Mrs B for the issues with the single assessment and the delay responding to their complaint;
    • pay them £250 to reflect their distress and the time and trouble they had to go to pursuing their complaint; and
    • remind officers dealing with complaints of the need to respond to the complaint even if there are ongoing attempts at resolution by other departments, unless the person(s) complaining agree to any delay.

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Final decision

  1. I have completed my investigation and found fault in part of the complaint which caused an injustice to Mr and Mrs B. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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