Decision : Upheld
Decision date : 27 Nov 2019
The Ombudsman's final decision:
Summary: This complaint follows a previous complaint to the Ombudsman in which we found that the Council failed to deal properly with Mrs X’s requests for social care support for her son since July 2017. The Council has now carried out an assessment and put in place a package of support. The Council has offered to pay Mrs X £10,000 to recognise the support her family could have had if it had handled her application properly. This is a suitable remedy.
- This complaint follows a previous complaint to the Ombudsman under reference 18 008 914. In that investigation the Ombudsman found that the Council failed to deal properly with Mrs X’s requests for social care support for her son since July 2017. The Council has now carried out an assessment and put in place a package of support. Mrs X complains that the Council has denied her son the support he needed for several years.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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, sections 26(1), 26A(1) and 34(3), as amended)
- 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)
How I considered this complaint
- I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered the decision on Mrs X’s previous complaint to the Ombudsman. I shared my draft decision with the Council and Mrs X and considered the comments I received.
- 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.
What I found
Relevant law and policy on children’s social care support
- Local authorities have a duty to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child's needs. (Children Act 1989, section 17). A disabled child is a child in need.
- Local authorities carry out assessments of the needs of the child to determine which services to provide and what action to take. They have a positive duty to take reasonable steps to identify children in need within their area and, when identified, to undertake an assessment of those needs.
- As part of their services to families, councils must offer carers of disabled children short breaks from caring to help them look after their children at home. (Children Act 1989, Schedule 2, paragraph 6)
- To decide who is eligible for access to short breaks from the Children with Disabilities Team, the Council requires the child or young person to be accepted onto the ‘iCount’ register.
- Mrs X has four children, including Y, who is now aged 17. Y has a long-term health condition which results in frequent and regular treatment at hospital. He has needed hospital admission several times. Y also has special educational needs and receives support under an Education Health and Care (EHC) Plan.
- Mrs X had a history of unsuccessful applications for support from the Council’s Children with Disabilities Team. In December 2016 the Council closed the social care case, while noting risks to Y because of difficulties managing his health condition, on the basis that Mrs X had not completed the required iCount forms properly or provided sufficient information.
- In May 2017, following a referral from the hospital Y attended, the Council carried out a child and family assessment. This resulted in a decision that Y was a Child in Need. The Council drew up a Child in Need Plan in June 2017. As part of the Plan Y was to be registered with the Children with Disabilities Team through iCount so he could have short breaks away from home. This was to provide respite and improve the family’s emotional well-being. The plan was to complete this action by the end of July 2017.
- Over the following year Mrs X tried to register with iCount, making applications and providing evidence. On each occasion the Council said she had not provided enough information or completed the forms correctly. Mrs X made complaints to the Council and through her MP that the Council was failing to provide support to her family and she was struggling to meet her son’s needs.
- In September 2018 Mrs X complained to the Ombudsman. We investigated the way the Council had dealt with her requests for support from May 2017. During the course of the investigation the Council agreed to consider a new iCount application and carry out a new child and family assessment. In January 2019 the Council accepted the iCount application, using the same evidence it had considered previously.
- In our decision on Mrs X’s complaint we found that the Council was at fault in the way it handled her application to register for support and the social care element of Y’s EHC assessment. We considered that the Council had allowed its own procedural rules to act as a barrier to access support identified as needed by a Child in Need. The Ombudsman concluded that if the Council had dealt with Mrs X’s application properly in July 2017 it should have accepted it, as it met the eligibility criteria based on its own findings. We could not know how much support and respite the Council would have provided. But we found that the loss of opportunity to access short breaks represented an injustice to Mrs X and her family.
- To remedy the injustice the Council agreed to:
- complete the new child and family assessment and carer’s assessments,
- apologise to Mrs X and make a payment to recognise the loss of opportunity to access support, the anxiety and distress she experienced, and the unnecessary time and effort involved in pursuing her iCount application and her complaint,
- carry out a review of its procedures for considering iCount applications.
Outcome of assessments
- Following the child and family and carers assessments the Council offered Mrs X a package of support as follows:
- Direct Payments to cover around 12 hours a week support and respite for Y, with more in the school holidays; and
- a Personal Budget for gym membership and a pass for Y to access leisure activities.
- The Child in Need Plan drawn up in June 2017 said the family should have access to support from the end of July 2017. This did not happen because of the failure of the iCount application which meant Y was not registered. The decision in January 2019 approving the latest iCount application used the same medical evidence provided in July 2017. I consider this meant Y had missed out on support he could and should have received from the beginning of August 2017.
- Now that the Council has completed the new assessments and offered a support plan, I asked the Council to consider how it could remedy this loss of service.
- The Council agreed that if it had managed the application process better, the family would have been able to access support sooner. It has offered to pay Mrs X £10,000 to reflect the loss of services she could have had since August 2017. It should make the payment within one month of the final decision on this complaint.
- Mrs X is happy to accept this offer and I consider it is a suitable remedy, in addition to the remedy already received as a result of her previous complaint.
- I have found that the Council has made an appropriate offer to remedy the injustice caused by the flaws in the way it dealt with Mrs X’s request for social care support for her family. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman