Summary: Mrs X complained the Council arranged respite care for her son, Y, which did not meet his assessed needs. She also complained the Council offered her insufficient direct payments and did not respond to her complaint about this in a timely manner. She said this caused her stress and had a negative effect on Y’s social development. The Council was at fault when it delayed responding to Mrs X’s complaint in line with statutory timescales. The Council should make a payment of £150 to acknowledge the stress, time and trouble she experienced because of this. The Council was not at fault in its management of Y’s respite placement and direct payment funding.

The complaint

1. Mrs X complained the Council:
1. arranged a respite placement for Y which did not meet his assessed needs and failed to contribute appropriately to his progress and development;
2. failed to offer direct payment funding which would enable him to commission the care he required; and
3. significantly delayed in dealing with her complaint.
2. She said this matter has caused her stress and negatively affected Y as he has not had access to respite since April 2019.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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, section 34(3), as amended)
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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

6. I made enquiries of the Council and considered the information it provided. This included email and letter correspondence shared between Mrs X and the Council, Y’s care plan, Y’s risk assessment, Y’s child in need reviews and Y’s child and family’s assessment.
7. I wrote to Mrs X and the Council with my draft decision and gave both a chance to comment before I made a final decision.

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What I found

Statutory children’s complaints procedure

8. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services.
9. Stage 1 requires the Council to informally resolve the complaint within 10 working days.
10. At stage 2 of this procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation). The investigation should take no more than 65 working days to complete.
11. If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 complaint review panel. The panel is comprised of three people who have experience in social care but are independent of the Council. The panel should be held within 30 working days of receiving the escalation request and a final response delivered within 15 working days of the panel.
12. 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.

Children and families assessment

13. Disabled children have a right to an assessment under the Children Act 1989. If requested the Council will undertake an assessment of need, which is called a Children and Families Assessment.
14. When the Council receives a referral, a social worker will be allocated to undertake the assessment of need. Following this assessment, a decision will be made as to whether the child or young adult is eligible to receive a particular service.

Child in need review

15. Section 17 of the Children Act 1989 imposes a duty on the Council 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.
16. If the Council receives a referral it should assess the child and family quickly and decide if it needs to carry out a full assessment or take urgent action.
17. Once completed the Council must decide how to meet the assessed needs.
    The Council offers the services to meet the needs to the family. The family decide whether it wants that service or seeks direct payments.

Direct payments

18. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the care and support plan.
19. There are three main ways in which a personal budget can be administered:
• As a managed account held by the local authority with support provided in line with the person’s wishes;
• As a managed account held by a third party with support provided in line with the person’s wishes;
• As a direct payment.
20. Direct payments are cash payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The council has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
21. The guidance says the council must be satisfied that the direct payment is being used to meet the care and support needs set out in the plan and should therefore have systems in place to proportionally monitor direct payment usage to ensure effective use of public money.

What happened

Background

22. Mrs X’s child Y is nonverbal and autistic. He has multiple and severe learning difficulties and complex needs. Y requires constant supervision as he can be a danger to himself if left untended.
23. In August 2017, the Council assessed Y and decided he qualified for 6 hours of short break respite care per week. Y then began attending a Council arranged respite centre for children and young people with physical and learning disabilities one day a week.
24. At the time, Y’s care plan and risk assessment stated he required 1:1 support to carry out indoor activities and 2:1 support to carry out outdoor activities. Y’s child in need review stated the respite centre could give Y wider opportunities to socialise.
25. Mrs X says she was concerned from the outset that the respite centre could not meet Y’s needs as it was unclear whether it could provide adequate 2:1 care.
26. The Council conducted a review of Y’s needs in May 2018 and found Y was enjoying his visits to the respite centre and had been on several outings. The Council noted Y was unable to cope with trips outside the centre for longer than several minutes, but staff were continuing to support and encourage Y. The Council spoke with Y’s parents as part of the review and recorded the following, “Parents are happy with respite centre and confident that Y is happy to attend and enjoys his time here.”

Mrs X’s complaint

27. In October 2018, Mrs X complained to the Council that the respite centre was not meeting Y’s needs. She said he was not being taken out in the community or given the opportunity to engage in activities.
28. Mrs X, a Council social worker and the respite care manager met to discuss Y’s progress. Mrs X said during the meeting, the manager told her the respite centre could not meet Y’s needs. The Council has said the manager raised concerns that it could not meet Mrs X’s expectations.
29. Following the meeting, Mrs X said the social worker advised her that the Council could offer direct payments of £10.76 an hour to enable her to find more suitable care for Y. Mrs X was unhappy with this, as she felt it was not enough to source the level of care Y required.
30. A few days later, the Council contacted Mrs X and told her it had discussed the situation with the respite centre and the centre was now confident it could meet Y’s needs.
31. Mrs X complained to the Council on 27 November 2018. She maintained that the respite centre was not meeting Y’s needs and 6 hours respite care was not sufficient. She also said the direct payments offered were not high enough to enable Mrs X to find appropriate care for Y.
32. The Council acknowledged Mrs X’s complaint and advised it would respond to her complaint by 10 December 2019 in line with the statutory children’s complaints procedure.
33. Mrs X chased the Council for a response on 24 December 2018. On 3 January 2019, the Council spoke with Mrs X and she agreed to give the Council a further week to respond. The Council responded to Mrs X at stage 1 of the statutory children’s complaints procedure on 8 January 2019 and apologised for the length of time taken to respond.
34. The Council said it had reviewed the respite centre’s records and Y had gone on several day trips but the frequency of these trips was dependent on the weather and the number of other young people at the facility. The Council said it had spoken with the respite centre manager and was hopeful Y would go on more day trips in future. The Council confirmed that the £10.76 direct payment offered was a standard rate offered to all children with disability related needs.
35. The Council said it had discussed the amount of time Y spent at the facility with the respite centre manager and advised, “[the 6 hours is based upon Y’s individual needs and is proportionate to these needs. The justification for this is that Y is at school 5 days per week…parents have also shared that Y spends time with them at the weekend as a family…this means that 6 days per week are taken up with long school days and family days… ]” The Council said it was satisfied the respite centre was meeting Y’s needs and invited Mrs X to discuss the details of Y’s care plan with the facility staff at a meeting.
36. Mrs X did not feel the Council’s response fully addressed her complaint points and she escalated the complaint to Stage 2 of the statutory children’s complaints on 8 January 2019. Mrs X decided to remove Y from the facility in April 2019 as she remained unhappy with the care he was receiving.
37. In May 2019, the Council conducted a further child in need review and stated that Y had been accessing more social opportunities in the community whilst at the respite centre but was no longer accessing short breaks provision.
38. The Council began a stage 2 independent investigation and concluded its investigation on 17 July 2019. The Council has explained it delayed finalising the investigation partly because the Investigations Officer (IO) originally appointed to the investigation became ill and partly due to some annual leave Mrs X took with her family.
39. The IO visited the respite facility, interviewed staff and reviewed Y’s care plan, risk assessment and case records. The IO concluded the following, “The investigation found information within case records and from interviews with staff, that there was evidence that the respite centre staff had a depth of understanding of Y’s social emotional and developmental needs through observation of Y’s behaviour and interests. Staff risk assessed and planned and reviewed activities in an appropriate way that demonstrated how they met Y’s needs.” The IO found no evidence that the staff at the respite service were unable to meet or adapt to Y’s needs.
40. The IO partially upheld Mrs X’s complaint that the Council’s stage 1 response was insufficient and delivered outside of the statutory timescales. The IO found the Stage 1 response was based on a thorough and impartial investigation but failed to adequately describe how the respite centre was meeting Y’s needs.
41. The IO recommended that the Council apologise to Mrs X and ensure that it provided sufficiently detailed complaint responses in future. Mrs X was unhappy with the outcome of the stage 2 investigation and maintained her view that the Council had not demonstrated how the respite centre was meeting Y’s needs.
42. On 14 August 2019, Mrs X asked the Council to escalate the complaint to Stage 3 and to arrange a further assessment of Y’s needs. The Council carried out a child and family assessment and found that Y required a substantial level of support and universal services could no longer meet Y’s complex needs.
43. On 3 September 2019, the Council held a Stage 3 panel which Mrs X attended.
    The panel discussed the elements of the Stage 2 investigation which were not upheld and heard Mrs X’s views. The panel concluded the Council had carried out all recommendations made at Stage 2 and found no fault with the IO’s investigation. The Panel recommended that the Council review Y’s risk assessment and all information offered to parents regarding respite facilities to ensure they understand the services being offered. The Panel also recommended that the Council provide Mrs X with a summary of Y’s achievements Y whilst he was at the facility.
44. Mrs X opted to refer her complaint to the Ombudsman following the panel as she believed the Council should have reassessed Y earlier and remained dissatisfied with the Council’s response to her complaint.

Findings

45. Mrs X complained the Council failed to provide a respite placement for Y which met his assessed needs. The Council responded by conducting a comprehensive two stage investigation into Mrs X’s concerns which included meeting and interviewing staff and reviewing Y’s care plan and records. The Council decided based on this evidence that the respite centre was providing a suitable level of care appropriate to Y’s needs at the time. The IO did not find evidence that Y’s needs could not or were not being met by the respite facility. The stage 3 panel oversaw the IO’s investigation and agreed with the conclusions they reached. It is not the Ombudsman’s role to re-investigate this on the Council’s behalf. Having reviewed the investigation, I am satisfied the IO conducted a thorough and well researched enquiry and provided a detailed assessment of how Y’s needs were being met. There is no fault in the Council’s actions.
46. Mrs X complained the Council did not offer sufficient direct payments for Y’s care when she was considering removing Y from the respite facility. I cannot see that Mrs X provided the Council with significant evidence showing £10.76 was not sufficient to enable her to find the right level of care for Y. I therefore have not found fault with the Council’s actions regarding this aspect of the complaint.
47. Mrs X complained the Council failed to deal with her complaint in a timely manner. The guidance requires the Council to address a stage 1 complaint within 10 working days and a stage 2 complaint within 65 working days. The Council responded to Mrs X’s complaint 28 working days after Mrs X submitted her stage 1 complaint and took 190 working days to respond to Mrs X’s stage 2 complaint. This is fault. Mrs X was put to inconvenience as she had to chase the Council for a response to the complaint and it is likely this contributed to the breakdown in trust between Mrs X and the Council. Following this, the Council apologised for delaying its responses. I consider the Council should also provide a symbolic payment to remedy the injustice caused by this part of the complaint.

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Agreed Actions

48. Within one month of the date of my decision the Council has agreed to provide a symbolic payment of £150 to Mrs X to acknowledge the time and trouble she was put to because of the Council’s delay in complaint handling.
49. Within one month of the date of my decision the Council has agreed to provide evidence showing it has reminded its staff of the importance of dealing with complaints within the statutory timescales.

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Final decision

50. The Council was at fault when it delayed responding to Mrs X’s complaint and I have made recommendations to remedy the injustice caused by the fault. There was no fault in the Council’s management of Y’s respite care and direct payments. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman