Summary: Mr B complains about the actions of the Council in respect of care for his disabled children. Where his complaint concerns social care, which is the responsibility of the Council, the statutory three-stage procedure for children’s services complaints applies. That procedure has not yet been completed. The Council has indicated its willingness to compete the process and that is the appropriate way for Mr B to pursue his complaint at this time. On this basis, the Ombudsman has discontinued his consideration of this complaint. Where Mr B’s complaint concerns respite provision and the principal issue is one of clinical care, the appropriate service to deal with this is the Parliamentary and Health Service Ombudsman.

The complaint

1. The complainant, whom I shall call Mr B, complains that the Council

• delayed conducting assessments to fully inform itself about the needs of his disabled children;
• failed to put in place services to meet the identified needs of the children;
• imposed restrictions which meant Direct Payments could not be used flexibly; and
• failed to respond to his complaints about these matters.

2. In addition, Mr B complains that the Council failed to take action to protect his son’s respite provision.

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The Ombudsman’s role and powers

3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

4. I have considered the information provided by Mr B about his complaint. I made brief enquiries of the Council to establish its position in respect of any open investigation into these matters.
5. I sought advice from colleagues in the Joint Working Team. This team is made up of investigators from both the Parliamentary and Health Service Ombudsman (PHSO) and the Local Government Ombudsman. Where appropriate the team deals with investigations which cover the different areas covered by the two organisations, which are typically health and social care issues.
6. I provided Mr B and the Council with a draft of this decision and took account of all comments received in response.

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What I found

Background to the complaint

7. Mr B has disabled twins. One of the children has more significant needs than the other. He has a tracheostomy, in addition to other disabilities, and this requires him to be constantly monitored by someone fully trained in his care.
8. Both children were having respite stay at the same provider once a month. Mr B reports the following:

• that the provider then said they could no longer meet the needs of the child with the tracheostomy and so he could no longer stay there.
• That the Clinical Commissioning Group (CCG) said that it was care provider’s responsibility to ensure their staff have appropriate training;
• That the care provider said that the training required is only available from NHS specialist teams;
• that Newcastle Hospitals, a regional centre for tracheostomy care, said that they were unable to provide tracheostomy training;
• that Gateshead Children’s Community Nursing Team said that they were unable to provide training as the respite centre is located out of borough, and in any event, they are unable to provide training to the level required by Ofsted for care providers.

9. Mr B wanted appropriate training and support to be made available to the care providers so that his child could receive the care set out in his Education Health and Care Plan. He said one of the relevant bodies needed to ensure the child’s needs were met, before any negotiations about which body is ultimately responsible.
10. Mr B complained both to the Council and to the CCG. However, the matter remains unresolved. The Council in its response noted that this was primarily an issue about health provision: the health service was managing and funding the child’s respite placement.
11. Mr B also complained to the Council about other matters, relating to its social care role for the children and to direct payments associated with that. These matters are appropriate for consideration under the statutory complaints process.

The statutory complaints process

12. The Children Act 1989 and the Representations Procedure (England) Regulations 2006 provides that, those in receipt of certain services, can make representations or complaints to the Council. A council must investigate the complaint subject to certain restrictions. The guidance Getting the Best from Complaints 2006 provides detailed advice on how councils should conduct investigations.
13. There are three stages to the statutory social services complaint procedure. The first stage allows an informal resolution of the complaint. If that is not possible, the complainant is entitled to an independent investigation of the complaint. The Council may also appoint an independent person to oversee the investigation. At the final stage, an independent Complaints Review Panel can consider the complaint.
14. The guidance is clear that once a council has accepted a complaint under the procedure, unless it is resolved to both parties’ satisfaction, the complainant has a right to go through all three stages. If, after this, the complainant remains dissatisfied, they can submit a complaint to the Ombudsman.

The Council’s consideration of issues under the statutory process

15. The Council confirmed that Mr B’s complaint about social care is at the second stage of the statutory process. An investigating officer and an independent person were assigned, and it wrote to Mr B to seek to arrange contact with him to define the complaint and his desired outcomes to ensure the investigation is thorough. At 24 March 2020, when it responded to my enquiries, the Council was awaiting Mr B’s response.

Analysis

16. Mr B’s complaints may on the face of it be separated into two parts: those relating to health and those relating to social care.
17. In respect of social care issues, including assessments, meeting social care needs and direct payments, the appropriate course of action is for the Council to consider these under the statutory complaints process outlined above. Mr B will need to contact the Council to continue this process, to provide it with information needed to inform the stage 2 investigation. If Mr B remains dissatisfied at the end of the three-stage statutory process, he may refer the matter back to the Ombudsman if he wishes.
18. Responding to my draft decision, Mr B advised that the Council had written to him on 24 March 2020 advising him that investigation of his complaint was being paused. I have not been provided with a copy of that correspondence. However statutory guidance and regulation issued in association with the Coronavirus Act 2020 sets out that councils must continue to follow the statutory procedure when considering representations made to them about the services they provide to children and young people in this period but provide some flexibility in respect of the final stage of the statutory complaints procedure, the review panel stage. So, if the Council placed the stage 2 investigation of Mr B’s complaint on hold due to the Covid-19 pandemic, that would be contrary to the relevant legislation and guidance.
19. Mr B takes the view that because the Council has delayed, the Ombudsman should accept his complaint now for investigation. I have decided not to do so. In reaching this decision I have taken account of several factors. Firstly, the Council had contacted Mr B on three occasions prior to 24 March asking him to make contact about progressing his complaint at Stage 2 with the independent investigator, but it received no response. It is also the case that the Ombudsman’s own casework with all councils was itself paused for a number of weeks as a result of the pandemic and its effects, and so while the Council was aware the complaint had been made to the Ombudsman and was under consideration, no draft decision could be issued to either side at that time. If Mr B wishes to complain about delay by the Council in the statutory process, whether related to the Covid-19 pandemic or otherwise, he should make that complaint to the Council in the first instance. The Council will be able to advise Mr B about including this as a point of complaint in the stage 2 investigation once this gets underway.
20. In respect of a failure to protect the child’s respite provision, this aspect of the complaint does not relate to services for which the Council was responsible. As the Council has advised, the respite placement was funded and managed by Newcastle Gateshead CCG. It would ultimately have been for the CCG to work with the respite provider to ensure staff were appropriately trained to provide the necessary tracheostomy care. If this were not possible, it would have been for the CCG to arrange alternative provision. I share the Council's view that this element of the complaint relates to clinical care as it is clear staff at the placement required specialist NHS training to safely deliver the tracheostomy care required.
21. My view therefore is that this is a health-related complaint and the appropriate course of action in this case is for Mr B to refer that part of his complaint to the PHSO. Mr B considers that while the specific issue of access to tracheostomy training was a health matter, there were failings by the Council associated with this. It will be for the Council to reach decision on those alleged failings, through the statutory complaints process as outlined above. It is of course a matter for Mr B whether he wishes to make any health-related complaint to the PHSO.

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Final decision

22. I have discontinued my consideration of this complaint on the basis set out above.

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Investigator's decision on behalf of the Ombudsman