Kent County Council (19 009 190)

Category : Children's care services > Disabled children

Decision : Not upheld

Decision date : 03 Jun 2020

The Ombudsman's final decision:

Summary: The complainant is concerned that the Council has delayed in providing appropriate social care to her disabled son and to her. The complainant has appealed to the Tribunal in respect of her son’s final amended Education, Health and Care Plan. The Tribunal will be able to make recommendations about the appropriate level of social care. The Ombudsman considers it is best to wait the outcome of the Tribunal before investigating this complaint. He will therefore discontinue this investigation.

The complaint

  1. The complainant, who I refer to as Ms X, complains on behalf of her disabled son, Child B, and on behalf of herself. Ms X’s complaints concerns the lack of support she and Child B have received from the Disabled Children’s Services over the past two years (2018/2019), specifically that there has been:
      1. poor care and support generally to her son and that social workers have not provided a professional or timely service;
      2. the Council has refused to reassess Child B or obtain occupational therapy and National Health Service (NHS) assessments or risk assessments
      3. there have been threats to close the case and to sanction her;
      4. the Council has falsified records and influenced Child B’s school to write false safeguarding reports;
      5. the Council failed to respond to her complaints; and
      6. the Council refuses to progress any further complaints.
  2. In addition, Ms X complains that the Council’s recommended hours for support is insufficient to meet Child B’s extensive needs and do not take account of:
      1. the occupational therapy assessment which states Child B needed 2:1 support in moving and handling;
      2. Child B’s poor muscle tone and his lack of mobility;
      3. Child B’s’ need to follow a 24 hour postural care programme;
      4. Child B’s need for extra support to access his equipment;
      5. Ms X’s disability and that lifting Child B is causing her harm; and
      6. that the Funding Panel recommended 24 nights respite care which Ms X had not requested.

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What I have investigated

  1. This complaint only concerns the actions of Children’s Services. Matters, which the Ombudsman cannot investigate, are set out in the last paragraph of this statement.
  2. There is a corresponding complaint about the failure to make provision as set out in Child B’s previous Education, Health and Care (EHC) Plan. This is being dealt with under our reference of 19 002 786.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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))
  2. 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. (Local Government Act 1974, section 34(3))
  3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction.
  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

  1. I made enquiries of the Council and I have obtained its written response. Ms X has also provided written information and I have spoken to her on the telephone.
  2. I issued a draft decision statement to Ms X and to the Council and I have taken into account their additional comments before reaching my final decision.

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What I found

Disabled children

  1. Section 17(1) of Children Act 1989 imposes a duty on councils to safeguard and promote the welfare of children within their area who are in need, and promote their upbringing by their families, by providing a range and level of services appropriate to those children’s needs.
  2. Any service provided by a council in the exercise of their Section 17 functions may be provided for the family of a particular child in need, or for any member of their family who lives with them, if it is provided with a view to safeguarding or promoting the child’s welfare (s.17(3)).
  3. Section 17(10) defines a child as a child in need if:
    • He/she is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him/her of services by a local authority;
    • His/her health or development is likely to be significantly impaired, or further impaired, without the provision for him/her of such services; or
    • He/she is disabled.
  4. Schedule 2 Part 1 of the Children Act 1989 says that, where it appears to a council that a child within their area is in need, the authority may assess his needs for the purposes of this Act at the same time as any assessment of needs is made under the Chronically Sick and Disabled Persons Act 1970.
  5. The main guidance for assessing children in need is ‘Working Together to Safeguard Children’. The version in force at the time of this complaint is dated March 2018. It advises that the purpose of assessment is always to provide support to address needs to improve the child’s outcomes to make them safe. Assessment should be a dynamic process which analyses and responds to the changing nature and level of need.
  6. The timeliness of assessment is a critical element and the maximum timeframe should be no longer than 45 working days from the point of referral.
  7. The Chronically Sick and Disabled Persons Act 1970 places a duty on councils to assist people with disabilities, including children. The local authority must assess the child’s needs and then decide whether it is ‘necessary’ to provide any of the specified services set out in Section 2 in order to meet the needs of that child.
  8. Section 2 sets out a wide range of services a disabled child might need including practical assistance in the home, domiciliary care including short breaks in the home and recreational facilities/outings (which would encompass community short breaks). A council should decide whether it is ‘necessary’ to provide services under Section 2 after carrying out an assessment.
  9. Parents can request support to be provided by way of ‘direct payments’ from the Council which they can then use to buy services themselves.

Parent carers

  1. The Carers (Recognition and Services) Act 1995 provides that a carer can request a separate assessment of their ability to provide, and to continue to provide, care for the disabled child and a council shall take into account the results of that assessment before making a decision whether it is necessary to provide services to the child.
  2. The Breaks for Carers of Disabled Children Regulations 2011 (the Regulations) requires councils to provide, so far as reasonably practicable, a range of servicewhich is sufficient to assist carers to continue to provide care or to do so more effectively.
  3. The Regulations say a council must ‘have regard’ to the needs of those carers who would be able to provide care for their disabled child more effectively if breaks from caring were given to allow them to:
    • Undertake education, training or any regular leisure activity
    • Meet the needs of other children in the family more effectively, or
    • Carry out day to day tasks which they must perform in order to run their household.
  4. The Regulations make clear the main purpose of short breaks is to provide respite to the carer.
  5. The Children and Families Act 2014 also introduced new ways to meet the special educational needs, health and care needs of pupils aged 0-25. Councils and its partner agencies will issue an Education, Health and Care (EHC) Plan setting out a child’s special educational needs and their health and social care needs, and how to meet these.
  6. Councils must work closely with their partner agencies.

Key events

  1. Child B has an EHC Plan. Child B has been known to the Council’s Disabled Children’s Team since 2014. Child B is deemed to be a child in need.
  2. In April 2018, Ms X asked for additional support from the Council to help in caring for Child B. A referral was made by the occupational therapist (OT) asking for an assessment by Children’s Services. The then social worker visited Child B at his school, School Y. Ms X considers that the social worker encouraged safeguarding concerns to be raised by the school.
  3. Ms X has also raised concerns about School Y removing provision from Child B’s EHC Plan and which has resulted in harm to Child B. This is a matter Ms X is pursuing separately.
  4. The social worker completed her assessment, and in August 2018, the social worker told Ms X that her request for additional support would be considered by the Council’s Panel for funding (the Panel).
  5. There was a delay in the matter being considered by the Panel. Ms X raised a concern with the then social worker and was told the Panel would meet on 14 September. Ms X said that she required 24 hours support per week and 35 hours per week during the holidays.
  6. On 14 September, the Panel agreed the hours which the social worker had recommended based on her assessment; that was 8 hours per week in the school term and 10 hours per week in the school holidays direct payment. The Panel also agreed 24 nights a year respite.
  7. Ms X replied, stating that she did not need 24 nights respite because Child B was too young to be separated from her, but she did need the hours requested. She also said that the draft referral form for continuing health care had some inaccuracies which needed correcting. Ms X made a formal complaint to the Council and asked about how she could appeal the Panel decision.
  8. On 21 December 2018, Child B’s General Practitioner (GP) wrote supporting Ms X’s request for direct payments. There was a new social worker. She wrote to Ms X to say the NHS Trust could arrange a personal health budget. She also said that, if Ms X was not going to use what had been offered by the Council, the case would be closed.

Events of 2019

  1. Ms X indicated that she was unwilling to attend any more child in need reviews. The social worker explained that these were necessary, and that Ms X was being offered a care package which she was not taking up.
  2. Ms X replied saying that, as it was a legal requirement to attend child in need meetings, she would do so, but she asked the meeting to be recorded. She also explained that there was an investigation into the inaccurate information in the continuing care form and in the original assessment.
  3. The Council told Ms X that she did not have to use child in need services, but the Council would have to consider whether such a decision might cause harm to the child. But the Council did not have such concerns, so it would close the case if the package of care was not taken up.
  4. The Council told Ms X that social workers had a statutory duty under the child in need procedures to visit. Ms X explained that, as she was not receiving a package of support, there was nothing for the Council to monitor.
  5. In the meantime, the OT department continued to visit Ms X and Child B for the purposes of arranging and ordering assistive equipment for Child B. The OTs also needed to complete an assessment because Ms X was looking at moving to another property.
  6. Ms X says that the Council has not asked for a copy of these OT assessments.
  7. In June, the case was allocated to a Senior Practitioner. Ms X said that she was willing to meet her, but she said that the meeting would be recorded. Ms X alleges that, on 19 June, the Senior Practitioner telephoned her accusing her of refusing to let her see Child B.
  8. In June 2019, the Council’s Panel agreed to put in place an interim care package while undertaking a reassessment. Ms X continued to request any meeting was recorded. The matter was escalated to the Assistant Director. It was decided that the Council was required to assess the needs of the family and therefore the Senior Practitioner and Area Manager arranged a visit for 30 August.
  9. This time was not convenient for Ms X. But Ms X agreed with the Council that the focus had to be on Child B and allocating appropriate support. She told the Council that the care agency approached, to provide the recommended 8 hours support per week, had said, following their assessment, that Child B required 3 x 30 minute double handed calls per day which would equate to 21 hours per week. For assistance with tube feeding, there would need to be more hours.
  10. Ms X says that, in August 2019, three appointments were made by the Council but cancelled at short notice. She feels that dates are being scheduled to give the illusion that they are trying to help and support Child B, but meetings are then cancelled at short notice. Ms X says that social workers are unwilling to visit because she has requested that all meetings are now recorded.
  11. The Council says that it has sought legal advice on Ms X’s request for meetings and interviews to be recorded. Ms X says that the Council has asked her to sign a non-disclosure agreement, limiting to whom she shares the recording.

The Council’s investigations of Ms X’s complaints

  1. Ms X has made four complaints. The first two were considered by a Complaints Review Panel in June 2019 and related to the actions of the first social worker and her supervisor. The third complaint related to the actions of the Senior Practitioner and the fourth complaint concerned the actions of a recently appointed social worker.

Ms X’s views

  1. Ms X has recently paid for a private social work assessment and she has sent a copy of this to the Council’s legal department. She obtained this for the purpose of the forthcoming Tribunal appeal, due to be heard in early May 2020. Ms X says that this assessment is recommending many more hours per week than the Council’s assessment had done.
  2. At present, she is receiving no services from the Council and is paying privately for the care she requires to help her with Child B. Ms X says that she has been advised not to sign the care package offered by the Council because it provides too little and she must seek a more extensive care package and help from the Council.
  3. Ms X says she wants her meetings and interviews recorded because there have been inaccurate noting of meetings and inaccurate facts recorded in the social care assessments. She considers that recording meetings is the only way she can assure that information is correct. She would also want to share these recordings with any advisor she might wish to approach.
  4. Ms X is very aware that Child B’s needs are extensive. As he becomes older and bigger, she is not able to carry and lift him without help and, if she does, potentially it will cause her harm. She wants the current EHC Plan to be the blueprint for the future, with Child B’s needs accurately recorded and appropriate provision agreed.
  5. It is also expensive for Ms X to pursue appeals to the Tribunal. So, she wants to ensure that, after the summer 2020 Tribunal appeal, with Child B’s needs properly recorded in his Plan, along with the provision required, this might lessen the need for further appeals in the future.

Analysis

  1. It is clear that Child B has extensive needs and there have been disagreements between the Council and Ms X about how to meet these, and how to support her in her caring responsibilities.
  2. I am not making any decision about what has happened in the past, at this stage. I think it is best for the Tribunal to take place in the summer of 2020 and, once the outcome is known, the Ombudsman can better assess the alleged fault and assess the resulting injustice and consider whether any remedy is required.
  3. I am therefore discontinuing this investigation. Once the Tribunal decision is known, Ms X can resubmit her complaint to the Ombudsman.

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Final decision

  1. I have decided to discontinue the investigation. Ms X should contact the Ombudsman again once the Tribunal decision is known.

Parts of the complaint that I did not investigate, and which the Ombudsman will not be able to investigate in the future

  1. I am not looking at complaints about inaccurate information or falsified records because Ms X can approach the Information Commissioner.
  2. Complaints about the internal management of schools are not within the Ombudsman’s jurisdiction. Ms X has made complaints to School Y’s Board of Governors. Complaints about the professional practice of social workers can be referred to Social Work England. This is the body which registers social workers and can deal with individual complaints of poor professional practice.

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Investigator's decision on behalf of the Ombudsman

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