Summary: Mrs X complained about the Council’s failure to provide an appropriate level of support to assist in caring for her disabled daughter. She says the Council should have offered an assessment and care package since 2007. We have found some fault in the assessment process. We have also found the Council failed to properly remedy faults that were identified during its complaints procedure. To remedy the injustice caused by these faults, the Council has agreed to apologise, make a payment to Mrs X and her daughter and review its practices.

The complaint

1. Mrs X complains about the social care support provided by the Council for the benefit of her disabled daughter. In particular, Mrs X complains about the following aspects of the Council’s involvement:
1. The initial assessment was inadequate and led to a care package that was too low and unable to meet Child Y’s needs.
2. The subsequent assessments included significant errors and led to an inadequate level of support.
3. The independent social worker’s assessment was biased in favour of the Council and this led to an unfair outcome.
4. The Council failed to provide social care provision specified in Child Y’s EHCP.
5. The Council failed to assess and provide social care support to Child Y since the family moved into the Council’s area in 2007.
2. Mrs X says the Council has failed to assess and support Child Y since 2007. Mrs X says she had to give up work during this time because of her caring responsibilities. She says the rest of the family also suffered because of this additional pressure and financial loss. Mrs X says she is entitled to significant compensation in recognition of the lack of support that she and Child Y were entitled to for many years.

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What I have investigated

3. Part of Mrs X’s complaint is about the Council’s failure to provide support to Child Y since 2007 when the family moved into the area.  She first complained to the Ombudsman in February 2020.
4. The restriction outlined in paragraph 10 below applies to this complaint because Mrs X complains about events that took place over a year ago. The Ombudsman has discretion and can disapply this rule if there are good reasons.
5. I have decided to exercise the Ombudsman’s discretion to consider events dating back to June 2018 when Mrs X first requested support from the Council’s disabled children’s team.  She complained promptly to the Council after its first assessment and the complaints procedure has been extended because an appeal was made to the Tribunal.
6. While the Council’s complaints process considered events prior to June 2018, I have only considered this earlier period insofar as it relates to the Council’s own finding of fault.  The Ombudsman would not normally re-investigate matters which have been through the statutory complaints process: findings from such investigations should be relied upon unless the process followed was flawed, and I do not consider that to be the case here.
7. Mrs X has also complained to the Ombudsman about the Council’s failure to provide Child Y with a suitable education. These events are the subject of a separate, ongoing investigation by the Ombudsman and are not included within this decision statement other than for reference purposes.

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The Ombudsman’s role and powers

8. 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)
9. 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)
10. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
11. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
12. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).
13. 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

14. 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 relevant law, guidance and Council policy and procedures. I shared my draft decision with the Council and the complainant and considered any responses prior to making my final decision.

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What I found

15. 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.
16. 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.
17. If a parent carer of a child in need requests it, the local authority must assess whether the parent has support needs and, if so, what those needs are. This is known as a parent carer assessment. The local authority may combine the assessment with an assessment of the needs of the disabled child. The assessment must consider:

• whether the parent carer has needs for support in relation to the care which he or she provides or intends to provide;
• whether the disabled child cared for has needs for support;
• whether those needs could be satisfied (wholly or partly) by services which the authority may provide under section 17; and
• whether or not to provide those services. (Children Act 1989, sections 17ZA–17ZF)

18. If a local authority decides the child and/or parent carer qualifies for services, it may provide the services itself or offer Direct Payments so parents can buy the services.

Education, Health and Care Plans

19. A child with special educational needs (SEN) may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the Tribunal can do this.
20. Parents and young people can appeal to the Special Education Needs and Disability Tribunal (the Tribunal) about the provision in the social care section of the EHCP.
21. The council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

The statutory complaints process

22. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage two of this procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review. 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.

Key events

23. Mrs X has a teenage child with significant disabilities, Child Y. Child Y is fully dependent on others for all of her daily care needs.
24. Until 2007, Mrs X and her family lived in a different local authority area (Council D). Council D had provided occupational therapy (OT) support and equipment for Child Y. In 2007, the family moved into the Council’s area. Council D advised the Council of this.
25. The Council wrote to Mrs X, advising that equipment, requested by Council D’s OT, would be delivered. The Council invited Mrs X to make contact when the equipment arrived “to discuss any other issues that may require our attention”.
26. The Council says it first received a referral for a social work assessment in June 2018, following a request by Mrs X. This is confirmed by the records I have been provided with by the Council. Between 2012 and 2018, the Council’s social work involvement with the family was limited to OT support.
27. In June/July 2018, the Council carried out an assessment. Mrs X also raised her concerns about Child Y being out of school. She had recently stopped attending due to bullying. The social worker agreed to liaise with the SEN team about this. The Council was also made aware Child Y was not receiving physiotherapy.
28. This assessment led to the Council offering to provide support. The initial offer was one overnight carer and four additional hours. Mrs X said this was not enough and made it clear she was not coping. It was immediately increased to two nights of overnight care (known as “waking nights”) and four hours by way of a direct payment.

September 2018 complaint

29. Mrs X formally complained about the lack of support offered in the current care package and about lack of support over previous years. She had received advice and was told this was significantly less that what she was entitled to and others received. Mrs X remained worried about Child Y being out of school.
30. In response, the Council increased the package of support to include an additional four hours support at night to allow for two carers to be employed. The increased package was now 40 hours of support per week.
31. The Council also agreed to allocate a new social worker to carry out a fresh assessment that was completed in November 2018. This led to the care package being increased by five hours, to 45 hours over a period of seven days.

December 2018 complaint

32. Mrs X remained dissatisfied and so complained again. In particular, she complained about the Council’s failure to offer an assessment and support sooner. Mrs X says the Council was aware of Child Y since 2007 and so she was entitled to significant compensation for support she had been denied.
33. The Council partially upheld this aspect of the complaint by acknowledging that the OT service should have advised Mrs X of her entitlement to an assessment. The Council agreed that as a disabled child, Child Y was a child in need and therefore entitled to an assessment under the relevant legislation. The Council said it would issue guidance to relevant staff to ensure service users were advised properly in future.
34. The Council said the latest assessment was thorough but recognised further consideration over moving and handling and sleep issues was required.
35. The Council upheld the complaint about the first assessment being inadequate.

January 2019 complaint – stage two statutory complaints procedure

36. Mrs X remained dissatisfied and in January 2019 requested that her complaint be escalated to stage two of the statutory children’s complaints procedure. The Council agreed and appointed an Investigating Officer and Independent Person to deal with the complaint.
37. In March 2019, the Council provided a detailed response to Mrs X’s concerns about the assessment.
38. The Investigating Officer, the Independent Person and Mrs X had a conference telephone call. It was agreed by everyone, including Mrs X, that a suitable outcome would be for an independent social worker to carry out another assessment. It was explained to Mrs X in writing that the appointment of the independent assessor would conclude her complaint.
39. The independent assessment was completed in May 2019. This was carried out by a social worker employed by a neighbouring council.
40. The independent social worker’s assessment significantly reduced the care package.
41. In June 2019, Mrs X wrote to express her dissatisfaction with this independent assessment because:
1. it was not independent; and
2. it was not thorough.
42. The Council responded in the following terms:

• Despite the independent assessor recommending a substantially reduced package, the Council agreed to honour its last offer.
• A review of the care package would take place after six months.
• The Council had produced a final EHCP. This included the social care provision from the second assessment. Mrs X had lodged an appeal and because the Tribunal had the power to amend health and social care provision and had asked for information, the matter would not be considered under the complaints procedure.
• She was advised she could revisit the complaint once the Tribunal had concluded, but was informed she could contact the Ombudsman at any time.

Events following the Tribunal

43. The Tribunal took place in December 2019. The Tribunal Order noted that agreement had been reached about social care elements of the plan. In February 2020, a revised final EHCP was issued.
44. The Tribunal Order stated that Child Y should be educated in a mainstream setting following a detailed and well-planned transition period. She would continue to be home tutored until September 2020. Social care provision should be made available during school hours.
45. In March 2020, the Council carried out a child in need visit. Mrs X told the social worker the Council was not complying with the EHCP and the situation with Child Y being out of school was untenable. She also raised the issue about not being provided with help before. The social worker offered to convene a multi-disciplinary meeting to get all the professionals together to find out what was going on. Later that month, Mrs X told the Council she did not want any visits for at least three months due the risk from COVID-19.
46. In May 2020, Mrs X asked for her stage two complaint to be restarted because it had not provided services in accordance with the EHCP. In June 2020, the Council replied and advised her she could contact the Council about this once the annual review of the EHCP had taken place later that month.
47. In July 2020, the Council confirmed it had increased Child Y’s direct payment from 18 to 81 hours per week. This was backdated to December 2019 and resulted in a back payment of £16,000, and ongoing monthly payments of £4600.

Mrs X’s complaint to the Ombudsman

48. In February 2020, Mrs X brought her complaint to the Ombudsman.
49. She raised the following matters:

• Child Y had not received the social care she was entitled to for the previous two years.
• She was not made aware that Child Y should have had a social worker, despite the involvement of the Council OT and SEN teams.
• This lack of support had impacted greatly on the whole family. Mrs X had been unable to work because of her caring duties. This also impacted on the time she was able to give her other two children.

The Council’s response to the Ombudsman

50. The Council said it was satisfied that Child Y’s social care needs had been provided for in accordance with both her assessments and her EHCP. Any unresolved issues were addressed by the Tribunal in December 2019. The package of care had increased significantly from December 2019 to 81 hours plus four “waking nights”. The previous care package was 18 hours plus four “waking nights”.
51. Prior to June 2018, the only referrals made to the Council were for OT support. This included referrals made by Mrs X herself. Mrs X did not request any additional support, either as a standalone service, or as part of the EHCP review process prior to 2018.

Analysis

52. The role of the Ombudsman is to review the Council’s adherence to procedure, not to substitute the professional judgement of its officers for his own. That a complainant may disagree with a decision made (such as the outcome of an assessment) by the Council does not, in isolation, mean the Ombudsman can uphold a complaint.

Stage one complaint - the first assessment

53. Child Y has several serious lifelong medical conditions that require a significant level of support. She is clearly a disabled child and the Council has accepted this is the case. It therefore has a duty to assess her needs to ensure it provides services to promote her welfare if needed.
54. The Council took prompt action to carry out an assessment of need when it received the request from Mrs X in June 2018. The first assessment dated August 2018 identified a need for support. It is fair to say this was at a relatively low level compared to what has now been agreed.
55. This forms the basis of much of what Mrs X now complains about. Mrs X says she has had to fight and complain to get what she is entitled to. Mrs X was under the impression Child Y should be provided with 24-hour care.
56. In its December 2018 complaint response, the Council accepted there was fault with the first assessment. The manager dealing with the complaint found it to be lacking in detail. But she also recognised the Council was subsequently responsive to issues and concerns raised by Mrs X and so was not at fault in respect of the second assessment and resultant support package (18 hours worth of care and two waking nights).
57. Mrs X strongly disagrees with the Council’s assessment of Child Y’s needs and their impact on her and the rest of the family. Because the Council followed the procedure set out in legislation and guidance and appropriately considered the circumstances of Mrs X and Child Y’s situation, I cannot question its decision regarding the level of support no matter how strongly Mrs X disagrees.
58. While I am satisfied the Council took appropriate action to correct the inadequacies of the first assessment by doing it again, this did not remedy the personal injustice to Mrs X caused by the initial fault. It is clear from the records I have seen that Mrs X spent considerable time and trouble contacting the Council to seek a resolution of the matter. This requires an additional personal remedy.

Stage one complaint – the failure to offer an assessment prior to 2018

59. The Council identified another area of fault relevant to her complaint to the Ombudsman. The Council accepted that the OTs involved with the family prior to 2018 should have told Mrs X that Child Y was entitled to an assessment of need. I agree with this outcome and for the reasons explained at paragraph 21 above the Ombudsman will not normally reinvestigate matters where the Council has already done so properly, in accordance with the statutory procedure.
60. The question for me therefore is whether the Council’s remedy for this accepted fault was sufficient. 
61. I do not consider the apology the Council offered adequately reflects the personal injustice to Mrs X or Child Y.   I am satisfied that Mrs X suffered distress when the Council confirmed it should have offered Child Y an assessment sooner than it did, and that both she and her child were left with uncertainty about whether they would have been provided with support sooner than they were.  That distress and uncertainty warrant additional remedy.
62. The Ombudsman’s Guidance on Remedies says that councils are expected to treat people fairly and with respect and not expose the public to unnecessary distress, harm or risk as a result of their actions. Such injustice cannot generally be remedied by a payment so we usually seek a symbolic amount to acknowledge the fault on the complainant. A remedy payment for distress (which covers undue significant stress, inconvenience and frustration) is often a modest sum between £100 and £300. In cases where the distress is severe or prolonged, up to £1000 may be justified, as is the case here.

Stage two complaint

63. Mrs X remained dissatisfied and asked for her complaint to go to stage two. It was proposed and agreed by all parties that an independent social worker should carry out an assessment. This social worker proposed a reduction in support.
64. While Mrs X disagreed with the outcome, I do not find fault with the approach taken by the Council to try and resolve her complaint. While Mrs X says this independent assessment was biased and inadequate, I do not have evidence to support this. I appreciate Mrs X disagrees with the outcome, but this was a matter of professional judgement and not one the Ombudsman can interfere with.
65. In any event, the Council agreed to disregard this assessment in Mrs X’s favour.
66. By this time (May 2019), Mrs X had lodged her appeal with the Tribunal, which included an appeal about social care provision. Because the level of support offered by the Council following the second assessment was considered by the Tribunal, the Ombudsman has no jurisdiction over this. For this reason, I can only consider what happened afterwards, in particular whether what was agreed at the Tribunal was put into place. Mrs X says it has not been provided.

Social care provision after the Tribunal

67. Mrs X says the Council failed to provide the level of daytime social care support agreed at the Tribunal.
68. The records I have seen confirm this is partially correct. In July 2020, the Council wrote to Mrs X saying it was making a significant back payment covering additional hours from December 2019 to May 2020. The letter says it will increase the amount payable monthly to the higher level of support that was agreed at the Tribunal. There was no reference to this in the records I was provided with by the Council.
69. This adjustment was made several months after the Tribunal, so it is fair to assume that Mrs X spent time over several months trying to get the Council to provide the level of support that had been agreed. This delay is fault and I have made a recommendation below to recognise and remedy Mrs X’s time and trouble spent in trying to resolve this matter
70. On the evidence I have so been provided with, I am satisfied the Council is now funding the correct level of social care provision, as agreed by the Tribunal.

Agreed action

71. Within one month from the date of my final decision, the Council has agreed to take the following action:
1. Apologise to Mrs X and Child Y for the faults identified in this statement.
2. Pay Mrs X £1000 and Child Y £1000. These are symbolic payments to acknowledge the uncertainty and distress caused by the fault already accepted by the Council in its stage one complaint response about its failure to make Mrs X aware of Child Y’s entitlement to an assessment.
3. Pay Mrs X £500 in recognition of her time and trouble spent dealing with the underpayment of social care support after the Tribunal and inadequate first assessment.
4. Reflect on the issues raised in this decision statement and identify any areas of service improvement. The Council should prepare a short report setting out what the Council intends to do to ensure similar problems do not reoccur. This report should be sent to the Ombudsman.

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Final decision

72. I have found the Council to be at fault and has agreed a suitable remedy. On this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman