Decision : Upheld
Decision date : 24 Oct 2021
The Ombudsman's final decision:
Summary: The complainant alleged that the Council delayed in providing appropriate social care to her disabled son and to her, and it delayed in complying with the June 2020 Special Educational Needs and Disability Tribunal decision in respect of her son’s social care provision. We find fault in some aspects of the Council’s approach causing injustice. The Council has agreed the recommended ways to remedy this. We are therefore closing the complaint.
- The complainant, who I refer to as Ms X, complained on behalf of her disabled son, Child B, and on behalf of herself. Ms X’s complaints are primarily about the actions of the Council’s Disabled Children’s Services between 2018 and 2020.
- Ms X has complained to the Council, but she is not with the Council’s complaint response. I have grouped the specific complaints into seven separate matters, as follows.
- Complaint 1: Ms X alleged that in 2018 the Council provided:
- poor care and support generally to Child B and that social workers have not provided a timely service;
- the Council refused to reassess Child B or obtain occupational therapy (OT) and National Health Service (NHS) assessments or risk assessments;
- there have been threats to close the case and to sanction her.
- the occupational therapy assessments of 2019, which stated Child B needed 2:1 support in moving and handling and the assessment referred to his poor muscle tone, lack of mobility, his need to follow a 24 hour postural care programme and his need for extra support to access his equipment. It also referred to Ms X’s disability and that lifting Child B caused her harm; and
- that the Funding Panel recommended 24 nights respite care which Ms X had not requested.
- there had been a failure to provide an interim care package despite the area manager confirming this would be in place by the summer of 2019;
- there had been no funding and reassessment every 6 months;
- there had been a failure to respond to Child B’s health and social care needs to enhance the quality of his life; failure to maintain medical equipment; failure to provide stair climb training for carer;
- that the assistant director threatened to close Child B’s case;
- the terms of the non-disclosure agreement, drawn up as a result of Ms X’s wish to record interviews with social workers and child in need meetings, were unreasonable;
- that it was not necessary to sign an agreement for an eligible person to receive social care.
- Ms X says that the Council’s actions have caused her avoidable distress over a prolonged period, that Child B has been without social care provision, which he requires, and she has had to pay for his care. She also has had to pay for an independent occupational therapy (OT) and speech and language assessments, and she commissioned her own independent social work report.
What I have investigated
- Matters, which I have investigated, are set out above.
- Matters which I have not investigated, and the reasons for this, are set out in the last paragraph of this statement.
The Ombudsman’s role and powers
- 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.
- 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.
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement.
- 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 our final decision with Ofsted.
How I considered this complaint
- I made enquiries of the Council and I obtained its written responses, which included the Council’s daily case notes for the period of 2017 to 2019. Ms X has seen the Council’s information and has provided written information in response. I have also spoken to Ms X on the telephone.
- I have interviewed two Team Managers from the Disabled Children’s Team and the Team Manager from the Occupational Therapy (OT) Department, all who have had some involvement in the events of this complaint.
- I have not considered every point raised by the Council or by Ms X. I consider it proportionate to focus on the significant issues rather than on matters that might not in themselves cause a significant injustice.
- I issued two draft decision statements and have taken into account the Council and complainant’s comments before finalising the complaint.
What I found
- 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.
- 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)).
- Section 17(10) defines a child as a child in need if he or she is disabled. A child in need will have a care plan which will be reviewed, normally on a six monthly basis.
- 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.
- 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.
- 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. The assessment should consider all the help that the disabled child requires and consider help for the carer to care for the disabled child.
- Assessments should be needs led rather than dictated by available provision.
- Section 2 of the Chronically Sick and Disabled Persons Act 1970 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.
- Continuing care is required where a child or young person has needs which cannot be met by existing universal or specialist services alone. The care is arranged and funded by the NHS.
- The Breaks for Carers of Disabled Children Regulations 2011 (the Regulations) requires councils to provide, so far as reasonably practicable, a range of services, which are sufficient to assist carers to continue to provide care or to do so more effectively.
- 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.
- In 2000, the direct payment scheme was extended to disabled children by way of an amendment to the Children Act 1989.
- Parents/carers of disabled children can ask for a direct payment (DP) to meet the needs of the child. The council must carry out an assessment and DPs must be sufficient to meet the assessed needs. DPs must be used by the parent/carer to meet the child’s needs. DPs do not affect any benefit entitlement.
- Persons receiving DPs must agree to DPs and keep and submit accounts.
Special Educational Needs (SEN)
- The Children and Families Act 2014 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 EHC Plan with different sections setting out a child’s special educational needs (section F), their health needs (section G) and social care needs (section H), and how to meet these.
- The EHC process requires a council to assess the social care needs in conjunction with carrying out an EHC needs assessment to identify any social care provision which should be treated as special educational needs provision.
- A council should implement a Tribunal Order and amend the final EHC Plan within 5 weeks of the hearing.
- Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Code says reviews must be undertaken in partnership with the child and their parents.
- The Code says councils should send a list of children and young people, who will require a review of their EHC Plan, to the health service and to council officers responsible for social care for children and young people with SEN or disabilities. This is to enable professionals to plan attendance at review meetings or provide information and advice.
Children with EHC Plans during the COVID19 lockdown period
- When England entered a national lockdown on 23 March 2020 schools were closed to the vast majority of children. They remained open only to vulnerable children, and children of specified key workers.
- Children with EHC Plans were included in the Government’s definition of potentially vulnerable children. Councils were advised to carry out risk assessments, to decide whether a child with an EHC Plan would be safer in a school setting. The aim of the measure was to ensure the child’s safety, rather than to ensure they received their normal educational entitlements.
- In respect of the EHC planning process, timescales were relaxed from 1 May 2020 and councils required to use reasonable endeavours to complete assessments and EHC Plans. This ended in September 2020.
The Council’s procedures for disabled children
- The Council has a Disabled Children’s Team. There are eligibility criteria to receive a service from this Team. There has been no dispute that Child B is eligible for such a service.
- There is a Young People’s Service Decision Making Panel (the Panel) which meets weekly to decide on care packages. The main attendees are the assistant director, area managers, team managers on a rota, family support worker and an OT as required.
- The social worker holding the case must submit relevant paperwork, signed off by their manager and will present the case to the Panel. The Panel should keep a record of its decision and the reasons for it. There is no appeal against a Panel decision. The only way to challenge a decision is to make a complaint or seek a reassessment.
- The Council has two service provisions for OT: one from social care and one from the National Health Service (NHS). Social care OT is to provide equipment, adaptations and to carry out risk assessments and ‘Moving and Handling’ plans for any equipment provided by the Council. NHS OTs work for the local health service and are not employed by the Council.
- The Council says that social workers and OTs use the same case file to record their involvement. So, when carrying out their respective assessments, they have access to both.
- The OT department do not ‘hold’ open cases once it has completed an assessment of need because there are too many cases. But a case will be reopened when required. However, where a family is known, the information can be obtained from the Council’s files which enables a new referral to be dealt with promptly.
- The Council has a contract with a provider who is responsible for monitoring and checking the safety of equipment provided at home.
- The Council’s Disabled Children’s Team says that, where two adults are required for lifting and handling, it would normally expect the parent/carer to be one of those adults. With young children, the starting assumption is that most of their needs will be met by their parents/carers. Therefore, support packages are generally provided in order to support parents to continue to provide good care, either by giving them a complete break or providing someone to support them, for example when moving a physically disabled child.
- The Council has a DP agreement form setting out the legal requirements on the parent/carer, a form which it requires the carer/parent to sign to say that they understand the terms of the agreement. The Council’s procedures say that the carer/parent must contact the Council if the needs change. The agreement says that parents/carers have the right to comment, complain and compliment the operation of the process.
- The Council expects the carers/parent to either have a separate bank account for the DPs or to have a ‘Kent Card’.
The Council’s procedure for parent/carers’ assessment
- The Council has guidance for officers that it is required to assess parent/carers on the appearance of need, and that in most cases, parent/carers are happy for their needs to be included as part of a children and family (C&F) assessment. The Council says that there is no minimum number of hours, and needs can be met by a one-off payment, short breaks, direct payments or commissioning services.
- The Council has a standard form for these assessments. At Part 3, under ‘Caring responsibilities’ the Council says that staff should only consider the difference between the help and support the child needs over the support a similar child would need.
- Personal care covers washing, toileting, changing, dressing, mobility support and feeding, and asks how often this support has to be provided in a day. The form also asks what other support the parent/carer receives, what their other commitments are, what support is required for the child to use community services and school.
- There is also a section for the parent/carer to complete about how their caring responsibilities affects them.
The Council’s procedures regarding recording of meetings
- In November 2019, the Council issued guidance about the electronic recording of meetings and conferences. It states that there are no legal restrictions on the recording of face-to-face contact whether overt or convert. But there may be restrictions on the use of the recording.
- The Council sought legal advice about Ms X’s requests to record interviews and meetings. The Council was advised that, although making a recording without consent is not an offence, it could be a civil matter if the recording was shared with third parties.
- Child B has been known to the Disabled Children’s Team since 2014. Ms X gave up her fulltime employment to care for Child B. Ms X has her own progressive medical condition, which can affect her mobility.
- Child B has also been known to the OT Disabled Children’s Team. He has not had an identified OT, but the Council says that his file has been open for reviews of his equipment.
Events of 2016
- In July 2016, there was an OT assessment in respect of the mobile hoist which Ms X was using to transfer Child B from his cot to a chair. The assessment did not record Child B’s weight or height on the form although this information may be on the OT files, which I have not seen. At this stage, Child B was aged six. The Council says that the assessment referred to one carer being required to use the mobile hoist.
Events of 2017
- In October 2017, the Council issued a final amended EHC Plan. The EHC Plan detailed Child B’s difficulties which prevented his learning, including profound global developmental delay, cerebral palsy, epilepsy, feeding difficulties requiring nutrition via gastrostomy (tube feeding), visual problems, hip dysplasia (for which he had an operation in 2016), and breathing difficulties.
- Child B is unable to convey his needs non-verbally. He is dependent on adult care to meet all his needs. Child B attended a special school, School Y, where physiotherapy and OT support was provided as part of Child B’s school routine.
- In December 2017, a Council OT visited to review Child B’s equipment. This included inspecting the toilet seat, bath support, the stair climber and ceiling track and mobile hoists. The OT noted where adjustments were required.
Events of 2018
- The OT arranged various visits and checks on equipment. On 11 April, Ms X told the OT that she planned to make a referral to the Disabled Children’s Team to see if she could obtain some extra support for Child B. Ms X had had an emergency admission to her local Accident and Emergency department (A&E). She was advised to reduce her lifting of Child B and it is this advice which prompted Ms X’s request for extra support.
- At the time of Ms X’s A&E visit, the Council says that she was able to call on a friend to help care for Child B. The Council says that it understood the friend later offered to be an additional carer.
- At this stage, Ms X was living in a three-storey house which was recognised as unsuitable given Child B’s extensive mobility needs.
- On 27 April, a referral was made to the Children’s Disabled Team by the Council’s ‘Front Door’ service. In May a social worker visited Ms X to gather information for the child and family (C&F) assessment. In June, the social worker visited Child B at School Y and made further home visits to Ms X and Child B.
- The social worker completed her assessment at the end of June. She said that the delay in doing this, over the 45 days, was because she was awaiting information from an ‘external agency’, although which one is not specified. The assessment noted that Child B was open to the OT department. It was noted that Child B had been awarded an out of court settlement for negligence by the hospital during his birth. Ms X has complained that the amount of the award was wrongly disclosed by Disabled Children’s Team although this is not a matter which I am investigating.
- Ms X has employed a deputy to manage Child B’s award.
- The social worker concluded that Child B had profound difficulties and Ms X was struggling on her own.
- There was no information from the OT department in the 2018 C&F assessment, except to note that Child B was open to that department. It was noted in the case file that Child B’s case was awaiting an OT review for hoists and slings, bathing support, stair climber and comfy chair. The Council says that the social worker would have seen the 2016 OT assessment and taken into account that information.
- The Council says that, although the OT assessment of 2016 was two years old, the outcome of that assessment was that only one carer was required to hoist Child B, and the social worker would have been aware of this. The Council says that the moving and handling of Child B was not discussed in any depth during the 2018 C&F assessment and that Ms X was unforthcoming about her needs. The Council says that Ms X raised a concern about her ability to independently carry out the moving and handling after the C&F assessment was completed. However, the Council was aware of Ms X’s medical condition but had understood it was well controlled.
- On 30 July, the social worker visited Ms X and Child B to explain that she would be suggesting six hours support per week in the holidays and four hours per week during term time. Ms X said that she required fifteen hours in the holidays and ten in the term time because she is a single carer.
- The social worker considered that this was too high and that it was necessary to ‘start off lower to see how it is managed’. The team manager says that, what was being offered was ‘fairly standard’, but that it would have been possible to review the hours once it had been seen how the care package was working in practice.
- The social worker raised the possibility to Ms X of making a continuing care health referral which Ms X agreed to. On 30 August, Ms X expressed concern to the social worker about the delay in arranging support, saying she submitted the referral five months ago. She explained that Child B was getting heavier, and she badly needed the support. She said that she would make an official complaint if there was any further delay. She also said that she was seeking back dated payments given the delay.
- The social worker apologised and stated the delay was because the referral to the Panel had not been signed off. She said that the next Panel was on 14 September.
- The social worker started a continuing care assessment form. Ms X commented on some of the inaccuracies in the form. She told the social worker that she thought she would need twenty-four hours per week and thirty-five hours during the holidays to allow her time for some respite. Ms X said that she was happy to have these hours from a combination of continuing care and social care support.
- The social worker reconsidered the amount of hours support required. She completed the necessary form for the Panel, stating:
“[Child B] needs to have a specialist service because of his additional needs, he needs to be given some social opportunities away from home with somebody that is able to meet his needs as well as at times providing support for his mother within the family home…
that as a single parent to have some regular additional support either to help with lifting [Child B] at bath times or support taking him swimming and give her some respite would be beneficial”.
- The social worker reviewed her recommendation and increased the hours of support required to eight hours per week during the term time and ten hours during the holiday. The Council estimated the total cost of the package amounted to £5,657.60 per year. The team manager approved the recommendations.
- On 14 September, the social worker attended the Panel hearing. The Panel agreed the hours, via direct payments, which the social worker had recommended. The Panel also agreed twenty-four nights a year respite at the Council’s own specialist residential home (resource C) or via a fostering scheme.
- Ms X replied, stating that she did not need twenty-four nights respite because Child B was too young to be separated from her, but she did need the daily/weekly hours as she had requested. She explained that Child B required manual handling for all routine activities, but he was getting too heavy for her.
- The Council says that the offer of twenty-four hours respite was to try to give Ms X a complete break from her caring role, whereby Child B could stay overnight at resource C once he had built up a relationship with the staff there through day visits. It was an offer made in good faith.
- On 20 September, the social worker emailed Ms X, stating that she had told the Panel about her injury when lifting Child B and the impact of her own health condition. The social worker suggested a separate parent/carer assessment which would:
“identify in detail the support you are requesting as you have now elaborated on how much difficulty you are having”
- Ms X said it would be hard for her to find the time for a separate parent/care assessment. Ms X says that she thought that this assessment should have been carried out at the same time as the C&F assessment.
- The Council says that the Disabled Children Teams normally incorporate the carer’s assessment in the C&F assessment, so all the information is contained within one document. This is why there was no separate parent/carer assessment on Child B’s file at this time.
- On 23 September, Ms X emailed the social worker. She noted that the Council was offering a total of 1282 hours (taking into account the twenty-four hours respite -576 hours per year) whereas she was asking for 1,535 hours per year, a difference of 253 hours. Ms X asked if this would be acceptable to the Panel. She also explained that she had a recurring injury from lifting and handling Child B.
- Ms X asked about how she could appeal the Panel decision but did not receive a response. She later learnt that the Council does not have an appeal system.
Child in need meeting on 28 September 2018
- At this meeting, Ms X reiterated that the hours offered were insufficient to meet Child B’s needs and that the assessment was inadequate. The Council says that a carer assessment was offered to Ms X at this meeting. But she declined this. The OT in attendance advised:
“”that managing the physical care of [Child B] is difficult and that she could do a moving and handling assessment to suggest techniques that may help but also to consider if 2:1 care is needed. This can then be fed back to the social worker. School advised that in class he [Child B] is handled by 2 people”.
- The social worker recorded in her notes that Ms X had made some valid points about her health needs and difficulties with the manual handling of Child B.
- Ms X subsequently complained that the social worker had said to her that she had not taken into account, nor was aware of other areas of support Child B required, like personal care and moving and handling.
- I have not seen a copy of the OT’s moving and handling assessment which should have taken place after the child in need meeting. But this may be on the OT files which I have not seen. The Council’s OT department has subsequently said that it was not asked to do an assessment in 2018.
- The Council says that, at the time of these events (2018), updates on moving and handling were not undertaken as a matter of routine. Annual updates have since been introduced. The Council says that the reference to the OT assessment at the child in need meeting was a reference to the 2016 assessment.
Ms X’s formal complaint to the Council
- Ms X made a formal complaint about the delay in providing her support. She explained that she was a single parent, with back problems and a diagnosis of a medical condition affecting her mobility. She said that Child B needed more than one person to lift and handle him as he was getting heavier. She also complained about the actions of certain social workers, the inaccurate information in the 2018 C&F assessment, the Panel decision and the lack of support. The complaints were considered under the statutory three stage Children Act 1989 complaint process. (I am not investigating the way the Council investigated Ms X’s complaints).
- In October 2018, the Council sent to Ms X the Direct Payment Agreement Form. It explained that it could not proceed with direct payments for the hours offered to her without the form being signed by Ms X. Ms X told the Council that she had legal advice not to sign the form because the support hours were insufficient.
- The Council says that the parent must ‘sign up’ to the terms of the agreement and conditions, before direct payments can be made. The Council says that there is no option for a parent/carer to sign the form on a ‘without prejudice’ basis.
- The Council transferred the case to a different Disabled Children’s Team because it felt that the relationship between Ms X and the previous Team had broken down.
- A new social worker was allocated. 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 the social care hours offered by the Council, the case would be closed.
- Ms X replied stating that she had not asked for the case to be closed. But the issue was that, what the Council had offered, was insufficient to meet Child B’s needs.
- On 21 December 2018, Child B’s General Practitioner (GP) wrote supporting Ms X’s request for direct payments. It was agreed that health OT would visit Ms X regarding moving and handling of Child B and additional equipment.
Events of January to July 2019
- In January 2019, there was an annual review of Child B’s EHC Plan at School Y. A social worker from the Disabled Children’s Team did not attend. The Council has explained that this is because Ms X objected to them attending. Ms X says it would have been open to the Disabled Children’s Team to have provided a written report. But it did not.
- There were a series of visits to Ms X’s home by health and the Council’s OTs to look at Child B’s equipment at home. Ms X mentioned that she required more help with moving and handling Child B and told the OT that the Disabled Children’s Team was looking into this.
- Ms X indicated that she was unwilling to attend any more child in need reviews. The social worker explained that these reviews were necessary, and that Ms X was being offered a care package which she was not taking up. She was asked to say whether she would accept the care package by 18 January.
- 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. Ms X explained that, as she was not receiving a package of support, there was nothing for the Council to monitor.
- 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 stated that it did not have such concerns, so it would close the case if the package of care was not taken up.
- In the meantime, the OT department continued to visit Ms X and Child B for the purposes of assessing, 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 (and has recently done so).
- In April 2019, the area manager wrote to Ms X to explain that the social worker would need to see her and Child B to review the care package offered. It was also explained that, if a family did not wish to receive child in need services, the case would not be kept open. But Ms X could refer Child B again.
- In May 2019, the Council OT completed a moving and handling assessment and sent this to Ms X. The OT assessment stated that two carers were required when using the mobile hoist to move Child B to and from functional seating/comfy seating and stair climber.
- In June, the case was allocated to a senior practitioner. Ms X telephoned the senior practitioner and said that she was willing to meet, but that the meeting would be recorded. The senior practitioner explained that she was not happy with this and would discuss this with her manager. Ms X says that she had lost trust in the Council making accurate written records and therefore she wanted meetings/interviews recorded.
- The senior practitioner emailed to say that she had to cancel the planned meeting the next day because of an urgent situation.
- In June, there was a further Panel hearing. It was agreed to put in place an interim care package, based on the previous assessment, while undertaking a reassessment. Ms X asked when this support would be provided.
- In July, the Council issued an amended final EHC Plan. Under H1 and H2 (social care), the EHC Plan stated that social care “support was currently being agreed”.
Events since July 2019
- In July, the Council says that Ms X made a further complaint which had already been considered through all stages of the statutory complaint procedure. The Council wrote to her explaining that it would be taking the first steps in its ‘unreasonably persistent complainants’ procedure.
- In August 2019, Ms X complained that the interim care package had not been provided and that there had been no reassessment. The Council explained that the reassessment could only go ahead if she agreed to allow the social worker to see Child B and herself. A reassessment could be completed then.
- In early August, a new social worker was appointed and arranged with Ms X to meet on 12 August with her area manager. The Council says that Ms X told the social worker that there were many inaccuracies in the Council’s records, that she would like to go through these and that she had appointed a solicitor. Ms X told the social worker that she would record the interview. The social worker asked her not to. But she said that Ms X could have a friend at the meeting if she wanted.
- The Council cancelled the proposed meeting and apologised for doing so. The Council says that this was because a new area manager was starting, and it made sense for the social worker to visit with her when she was available.
- The Council sought legal advice on Ms X’s request for meetings and interviews to be recorded. The legal advice explained that, while Ms X could record interviews, she was not able to disclose information to third parties. Ms X says that the Council asked her to sign a non-disclosure agreement, limiting to whom she shared the recording.
- Ms X agreed to the meeting but confirmed that it would be recorded, and she would share it with those involved in Child B’s care, namely her legal advisor. Ms X explained that, having a note taker, as the Council had suggested, would not work because there were too many inaccurate statements made in previous Council documents.
- The Council says that Ms X was not asked to sign a non-disclosure agreement. This was reference to a written agreement regarding the purpose of the recordings and what this would be used for. The social worker wrote to Ms X setting out the agreement.
- In August 2019, the Council’s OT department updated its assessment of Child B’s needs. The manager told Ms X that she had not been asked to provide a comprehensive assessment in 2018 but, if she had, she would have done so. The OT assessment recommended that Child B required two adults when being moved and lifted by hoist and that the parent/carer could not be expected to provide day and night care. The OT recommended 20 hours support per week, 25 hours in the school holidays, 10 hours at the weekend and a contingency fund of 10 hours in the event of emergency.
- The Council says that the OT department would not be expected to recommend details of a care package.
- On 23 August, the Council decided to cancel the proposed meeting for 27 August and wrote to Ms X to tell her this.
- The Council considered that it must visit Ms X and Child B and arranged a visit for 30 August. 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 Council’s recommended 8 hours support per week, had said, following their assessment, that Child B required three 30 minute double handed visits per day, which would equate to twenty one hours per week. For assistance with tube feeding, there would need to be more hours.
- Ms X told the Council that the proposed visit for 30 August was not convenient and that she would contact the Council about arranging a visit in September 2019. The Council says that it did not hear from Ms X about making a further appointment in September and she submitted a further complaint.
- Between November and December 2019, there was various communications between Ms X and the Council; dates were proposed but proved impractical.
- Ms X says that she felt that dates were being scheduled to give the illusion that the Council was trying to help and support Child B, but meetings were then cancelled at short notice. Ms X believes that social workers were unwilling to visit because she had requested that all meetings were recorded.
- Ms X appealed the amended July 2019 final EHC Plan to the Tribunal.
- Ms X continued not to receive social work support in accordance with the Panel’s decision of June 2018 and 2019. The Council says that this is because Ms X refused to sign the direct payment form. Had she done so, she would have received the support agreed by the Panel.
Events of 2020
- Ms X proposed a meeting for 23 January 2020 and explained that she had installed close circuit camera (CCTV) which would capture a video of the meeting and this meeting would also be tape recorded.
- This meeting did not go ahead because the Council decided to commission two independent social workers (ISWs) to complete the reassessment. Ms X wanted interviews with them to be recorded and to film the ISWs.
- The senior practitioner emailed Ms X to say that there would need to be a written agreement regarding:
- where and how the recordings would be stored and for how long;
- that there would be no downloading onto social media;
- a copy would be provided to the ISWs; and
- that the names of other professionals, who would view the recordings, would be made known to the ISWs so that they could contact them directly to ensure the recordings had not been tampered with.
“[Child B] is completely reliant on [Ms X] to meet all his needs both day and night to support him with personal car, hoisting, 24 hours postural support, transfer, gastrostomy care and feeding, medication safety, along with sensory and social stimulation”.
- The ISW noted that there was no care package except for what Ms X arranged and paid for. She noted Ms X’s own disability and that she might unexpectedly have a relapse. The ISW stated that Child B had to be hoisted for all transfers and required 2:1 support, and it could not be expected that Ms X would be able to do this.
- The ISW’s recommendation was broadly that Child B should receive:
- 5 hours support during the school week with 2.5 hours on a 2:1 basis;
- 12 hours per day of support at the weekends with 1:1 and 2:1 support; and
- waking night support.
- until a social worker had met Child B and assessed his current needs it was not possible to agree and put in place a support package.
- when the Disabled Children’s Team contacted her in April 2020, she replied asking when the interim package would be put in place as Child B had not had this for two years and his needs had not changed. She did not mention any additional difficulties she was facing because of lockdown, but she did refer to the continuing issue of the re-assessment of Child B’s needs.
- until the dispute about the direct payments was resolved, the Council could not put the interim support package in place.
- the Disabled Children’s Team had sent her information and an application form to apply for extra resources for her child at home through emergency Government funding, but she did not respond.
- four hours of 1:1 support per day in the term time;
- five hours of 1:1 support per day in non-term time;
- five hours 1:1 support per day at weekends; and
- a contingency of five hours per month in case of illness.
Ms X’s views
- Ms X says that that she has had to make a fresh request each time she considers Child B requires OT assistance from the Council as his case is closed after each intervention. Ms X says that this means each OT request is triaged every time. Ms X says that this is time consuming and unreasonable given Child B has serious physical disabilities and OT support and assessment of equipment should be available without putting up unacceptable barriers.
- Ms X says that the Disabled Children’s Teams’ actions have caused her avoidable distress, compounding an already difficult situation, and she has had to pay for Child B’s care out of his resources. She also has had to pay for an independent social work assessment and OT and speech and language assessment for the purposes of the SEND Tribunal. Ms X has been keen to ensure that Child B’s EHC Plan accurately reflects his needs, and the provision required, as a blueprint for the future.
- Child B has extensive needs, and this is not in dispute. But there have been disagreements between the Council and Ms X about the assessment of need and how to meet these.
Findings-Complaints 1 and 2-failures in the C&F assessment process
- I have joined these two complaints because they are both about the quality of the 2018 C&F assessment. Much of the subsequent disagreements stem from Ms X’s dissatisfaction with it.
- The social work assessment was initiated because Ms X had been to A&E, as a result of a muscle injury, she says caused by the lifting and handling of Child B. It was also noted in the C&F assessment that the complainant has a medical condition, albeit well controlled.
- The Council says that the assessment took into account the 2016 OT assessment which stated only one carer was required for hoisting and, by implication, it was reasonable for the Council to base its 2018 C&F assessment on this OT information. The Council also says that Ms X did not raise concern about lifting and handling Child B until after the assessment had been completed.
- The 2016 OT assessment was two years old, when Child B was probably smaller and lighter. The reason for the 2018 referral was because of an injury, which Ms X stated was caused by lifting Child B. That gave rise to the appearance of a need. This in itself should have prompted the Council to ensure that its C&F assessment of June 2018 took account of Ms X’s stated difficulty in lifting and handling Child B as he was getting bigger and heavier. The fact the Council relied on an OT assessment, which was two years out of date, when needs would have changed, amounts to fault and it was a significant omission.
- It is also not clear why the parent/carer assessment was not carried out at the same time as the 2018 C&F assessment, rather than inviting Ms X to have such an assessment afterwards. According to the Council’s own procedures, it should have been. I cannot comment on how forthcoming or not Ms X was about her needs. But the referral was made because of an injury Ms X had sustained lifting Child B and therefore that should have prompted an assessment of Ms X’s needs.
- In late September 2018, the Disabled Children’s Services asked for an OT assessment. It seems that this was some recognition that the June C&F assessment lacked this key information and indeed the social worker had stated that Ms X had made some ‘valid points’.
- However, I have not seen evidence that this OT assessment was completed and/or reported back to the social worker. Moreover, the OT department says it was unaware that one had been requested. This is fault because it was a missed opportunity to obtain relevant information and, had the OT assessment been obtained and taken into account, it might have reassured Ms X that the Disabled Children’s Team was taking her complaints about the C&F assessment seriously.
- In addition, in September 2018 Ms X asked for the Panel to reconsider the care package, having pointed out that the hours offered, including the 24 nights respite care, was only slightly short of what she considered was appropriate. This was another missed opportunity to reconsider the care package and to work with Ms X to try to find a solution to the disagreement.
- It took five months between Ms X’s referral (27 April 2018) to a decision (14 September 2018) by the Council of what support it would offer her and Child B. My view is that it should take twelve weeks between referral to decision. Therefore, there has been some six weeks of avoidable delay by the Council and that too is fault.
- There were OT assessments of May and August 2019 and in 2020. These assessments referred to requiring two carers to lift and handle Child B. The Disabled Children’s Team consider that a parent/carer would be expected to be one of those carers but, on the face of it, this would not provide any respite to the parent/carer and, in this case, it did not take into account the complainant’s physical difficulties.
- Accordingly, looking at the case as a whole, I find the Council at fault in the way it managed the initial 2018 C&F assessment of Child B and Ms X’s needs.
Threats to close the case
- The Council told Ms X that it would close her case if she did not agree to the care package. Ms X experienced this as unfair and threatening. The Council did not mean it to be. It is that the Council would not hold open child in need cases if the parent chose not to have such involvement unless there were safeguarding concerns.
- However, the Council should have been more open to listening to Ms X’s concerns and explain how it would address them. In the event a care package cannot be agreed, parents/carers should not be left without support while a dispute is resolved and is being considered through the Council’s complaints procedure. It was fault that the Council allowed this to happen.
Offer of respite care
- The offer of 24 nights respite care, made by the 2018 Panel, came as a surprise to Ms X because she had not asked for this and experienced such an offer as possibly meaning that the Council wanted to remove Child B from her care. This was not the case, and the Council made the offer believing that this would enable Ms X to have some proper free time and enable Child B to build up relationships outside the home. While I do not find fault in the Council making the offer, it may be important for the Council in future to check that a parent/carer wants this kind of respite support.
- However, I consider it was fault for the Council not to respond to Ms X’s request that the offer of 24 nights respite was converted into support hours.
Inadequacy of the number of hours offered
- It follows that a flawed C&F assessment is likely to mean that the assessment of the support hours required would also be faulty. I deal with this in greater detail when considering the injustice caused.
Complaint 3-failure to provide the interim care package in 2019; and Complaint 7-the Council has not allowed Ms X to record interviews/meetings
- I have combined these two complaints as they are inter-related.
- The 2019 Panel recommended that an interim care package, based on the previous assessment, was provided while a reassessment took place.
- The Council says that this could not happen for two reasons. Ms X placed certain conditions on visits from social workers, namely wanting to record interviews and meetings, so the reassessment could not go ahead. Secondly, Ms X refused to sign the direct payment form.
Recording of interviews/meetings
- With the advance in technology, particularly with mobile telephones and CCTV, it is much more common now for recordings to be made of interviews and meetings, overtly or covertly. Further, many councils will record incoming calls for training or other purposes. Social workers should not fear the recording of their interviews and it can be helpful to both them and to the parent/carer to have such a recording so that there is an objective account.
- There was a reluctance by the Council for interviews with social workers and child in need reviews to be recorded. Ms X explained why she had wanted to do this, namely concerns about the accuracy of previous notes taken by the Council. Ms X did not want to rely upon another person’s record and wanted an objective record of her own. Ms X also explained that she wanted to share the information with her legal advisor.
- My view is that these were legitimate reasons for Ms X wanting to record interviews and meetings. Ms X was also open with the Council about her request rather than recording the interviews covertly. I also could not see any evidence that Ms X had indicated that she would distribute the recordings inappropriately, for example to many other people, as perhaps feared by the Council. She explained that she would share these recordings with professionals involved with Child B.
- Moreover, Ms X first made her request to record interviews/meetings in early 2019 but it was not until mid-2019 that the Council sought legal advice. The Disabled Children’s Team was then told that overt and covert recording was not illegal, and it was only the inappropriate distribution of the recordings which would not be permissible.
- Given the impasse between the Council and Ms X at this stage, and that this was delaying the reassessment, and provision of support, my view is that the Council should have sought legal advice more promptly and it was fault to allow this disagreement to drift because it was preventing the reassessment going ahead.
Terms of written agreement
- In view of the lack of progress, the Council decided rightly to commission an independent assessment of Child B and Ms X’s needs. The Council says that this could not proceed because Ms X was unwilling to sign a written agreement about how her recordings would be stored and used and that the ISWs were not willing to proceed without this agreement.
- ISWs are independent of the Council, so I cannot comment on their actions. But it is not clear why Ms X was unwilling to sign the agreement and, on the face of it, the terms did not appear unreasonable.
- Therefore, I do not find fault on this aspect.
Direct payment form
- My view is that it should have been possible for Ms X to sign this on a ‘without prejudice’ basis, so that she could make clear that signing the agreement did not mean that she thought the support hours offered was sufficient. However, the Council do not agree that this would have been a suitable form of wording.
- I remain of the view that the Council has been at fault in that it should have been more open to finding ways around the situation to ensure that Ms X received a care package. It is also not clear if Ms X was offered a commissioned service, instead of DPs and she should have been provided with this option. However, I think it is likely that she may not have accepted services commissioned by the Council.
- The Council does not consider ‘without prejudice’ would have been an appropriate form of wording. I consider that this is primarily a matter for the Council. But my view is that, whatever wording the Council used, it should have been possible to provide Child B and Ms X with some DPs while the dispute was being resolved.
Complaint 4-that Child B’s equipment has not been checked by an OT
- There is evidence on the files of many visits by OTs to check equipment. My draft view is that there is not enough evidence to find fault on this aspect of the complaint.
Complaint 5-there have been delays in carrying out the reassessment
- There is evidence of various appointments being made which were either cancelled by the Council or not agreed to by Ms X. However, it seems the main reason for a delay in carrying out a reassessment during 2019 is because of the Council’s unwillingness to have interviews and meetings recorded. I have found fault with this.
- The Tribunal recommended a reassessment in June 2020, and it was agreed that Ms X’s independent social worker would sit in on this assessment and, on that basis, Ms X agreed not to record the meeting.
- It was not until October 2020 that this reassessment took place. Normally Tribunal decisions should be actioned within 5 weeks of the decision. But this reassessment agreement occurred during the COVID19 lockdown, and I can see that there were certain practical considerations which may have caused the delay.
- So, on that basis, I do not attribute the delay to fault by the Council.
Complaint 6-the lack of social care provision during lockdown
- I have found fault by the Council in not providing social care provision. When considering a remedy for this, I will include the period of March 2020 to September 2020.
Injustice caused by the Council’s faults
- Primarily, Child B and Ms X have been without a care package. I consider the Council should have reached a decision within twelve weeks of Ms X’s referral to it, say by the end of July 2018. I therefore consider that Ms X and Child B have been without a care package since that date to the present day. During this period, Ms X has used Child B’s award to fund support. Ms X is asking for backdated DP payments.
- Ms X has also suffered avoidable distress, time and trouble and frustration by the Council’s faults.
- The Ombudsman’s Guidance on Remedies makes the following points:
- for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
- there must be a clear and direct link between the fault identified and the injustice to be remedied;
- distress can include uncertainty about how the outcome might have been different;
- where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases.
- apologise to Ms X for the faults identified;
- make a symbolic payment of £1000 for the avoidable distress over a prolonged period;
- make a payment of £500 for the delay in completing the 2018 C&F assessment and reaching a decision on the care package;
- make a back dated payment of the DPs Ms X should have received during the period of 1st August 2018 to 22 October 2020. I have used the October date because the Council has agreed to backdate DP payments from this date to the present day (and this is now in hand). The Council has now calculated what this backdated sum will amount to. It has used the 2020 hourly rate of the amount £12.80 for the whole period from 2018 to 2020. The amount of backdated DPs to be paid amounts to £46, 500.57, which Ms X has the discretion to use for Child B’s benefit or to reimburse past care costs. The Council has now confirmed that this payment has been made in advance of our final decision in Ms X’s best interests;
- the Council is also making regular DP payments and has paid the back dated DPs for October 2020 to July 2021.
- where a child has physical disabilities, requiring significant OT involvement, the Council will consider joint visits are made by the social worker and OT when carrying out C&F assessments;
- social care staff will routinely be invited to EHC Plan annual reviews and, where they cannot attend, or the parent/carer objects to their attendance, they should prepare a report for the annual review;
- there will be a clear timetable for decision making on support packages. I recommend that it should take no longer than twelve weeks from the referral to the decision;
- the Council will devise a policy/procedure whereby, despite there being a dispute between a parent/carer and the Council, an interim care package is provided while the dispute is being resolved;
- the Council will develop an appeal system for parents/carers when they disagree with the Panel decision’s concerning the care package, instead of them having to pursue a time-consuming complaint under the statutory complaints system. The appeal should be heard by different members of the Panel and the Council should have a timetable so that appeals are dealt with promptly, I would recommend within four weeks of when the parent/carer first raised a concern. If the appeal does not resolve matters, parents/carers would be entitled to pursue a complaint under the statutory complaints process but with the proviso that an interim care package is provided while this process is underway;
- the Council will devise a form of words on the DP form whereby a parent can record their disagreement with the care hours, or the amount of DPs, offered so that DPs can be made available while the dispute is being resolved. It will be for the Council to devise a form of wording which it considers appropriate.
- I find fault in the way the Council has manged this case and this has caused injustice to Child B and to Ms X. I have recommended ways to remedy this, which the Council has agreed to. This is to its credit. I have therefore completed my investigation and am closing the complaint.
Parts of the complaint that I did not investigate, and which the Ombudsman will not be able to investigate in the future
- I have not investigated Ms X’s:
- complaints about the professional practice of social workers. These can be referred to Social Work England;
- complaints about data concerns or Ms X’s allegations of falsified records because Ms X can refer these to the Information Commissioner and has done so;
- complaints which include the actions of the health authority;
- complaints about the Council’s investigations of Ms X’s complaints because there has now been an independent investigation by the Ombudsman;
- concerns about the content of Child B’s EHC Plan and the unavailability of certain assessments. This was considered within the 2020 Tribunal hearing and therefore are not matters which the Ombudsman can investigate; and
- Ms X’s costs in commissioning an independent OT and social care assessment for her appeal to the SEND Tribunal. She has submitted a claim to the Tribunal for these costs.
Investigator's decision on behalf of the Ombudsman