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Derbyshire County Council (20 005 095)

Category : Children's care services > Disabled children

Decision : Upheld

Decision date : 20 Jul 2021

The Ombudsman's final decision:

Summary: Mrs X complains the Council withdrew 80 hours a year of mentoring support for her son without properly assessing his care needs. The Ombudsman finds the Council was at fault for ending the mentoring support when Mrs X refused to accept funding via direct payments. The Council will apologise, make a financial payment for the mentoring support funded by Mrs X including a shortfall of 40 hours and make a payment to acknowledge the distress caused by the Council’s faults.

The complaint

  1. Mrs X complains that the Council withdrew 80 hours per year of mentoring support for her son (Y) without properly assessing his care needs. Mrs X says the Council ended payment for the support because she would not accept funding via direct payments. Mrs X also complains about the way the Council handled her complaint.
  2. Mrs X says that without the commissioned mentoring service from the Council she could only afford to pay for 40 hours mentoring support for Y. This has had a significant financial impact on the family and caused distress.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I 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. 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)
  2. 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)
  3. 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 this decision with Ofsted.

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How I considered this complaint

  1. I have considered Mrs X’s complaint and spoken to her on the telephone. I made enquiries of the Council and considered the information and documents it provided in response. I sent Mrs X and the Council a copy of my draft decision and invited their comments. I considered all the comments I received before reaching my final decision.

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What I found

Assessment of need

  1. Local authorities have a duty under section 17 of the Children Act 1989 to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child’s needs. A disabled child is a child in need.
  2. Local authorities undertake assessments of the needs of the child to determine which services to provide and what action to take.

Direct Payments

  1. 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.
  2. 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.
  3. 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 can provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.
  4. Councils must provide information on organisations that can provide advice or assistance to help make informed decisions about personal budgets. The parent/carer or young person must agree to a personal budget and provision by direct payments.

Statutory Children’s complaints procedure

  1. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services.
  2. Stage 1 requires the Council to informally resolve the complaint within 10 working days.
  3. 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.
  4. 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 meeting.
  5. 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.

Background

  1. Below is a brief chronology of key events. It is not meant to show everything that happened.
  2. Mrs X has an adopted son, Y, who is a child in need. Y was receiving 80 hours of social care mentoring support. The Council competed an updated single assessment in June 2018 and concluded that there was a need for ongoing mentoring support for Y. In December 2018 further funding for mentoring support was agreed for 2019-2020
  3. At Y’s child in need review in February 2019, the Council told Mrs X it would pay the funding for the 80 hours of support into a direct payment bank account and Y’s social care case would be closed. Mrs X complained.
  4. The Council replied on 6 March 2019. It said it had agreed in January 2019 that children receiving direct payments of less than £2,000 per year could be given a one-off payment if social work involvement was not required in the child’s case. The Council said the case would be referred to the Early Help Team and Team around the Family (TAF) meetings would still be held, and this was the appropriate level of intervention for Y.
  5. Mrs X remained dissatisfied, and a further response was issued on 23 April 2019. This said the Council’s Disability Children's Service had not identified a specific role for a worker, the Council therefore intended to close Y's case. However, the Council would provide the direct payment to pay for the mentoring service.
  6. On 30 May 2019 the Council wrote to Mr and Mrs X requesting a home visit on 4 June 2019, in an attempt to resolve the complaint. Mrs X responded by email stating “unless you have reconsidered your decision we do not see how any more mediation will be useful to either you or us”.
  7. Mrs X asked for her complaint to be escalated to stage 2. The Council wrote to Mrs X on 22 July 2019. It said that Y’s social care case had now been closed.
  8. On 20 August 2019 the Council told Mr and Mrs X that Y’s case would be closed by the Specialist Disabled Children’s service on 12 October 2019. The Council said Mr and Mrs X had declined a one-off lump sum personal budget payment to continue to support Y’s access to Provider A’s services until August 2020. Therefore, the mentoring support would also cease on 12 October 2019. The Council said that for the support to continue for Y after this date it would have to be funded by Mr and Mrs X. The Council offered Mr and Mrs X the opportunity to reconsider direct payments.
  9. Mr and Mrs X did not want to pursue a personal budget and declined the use of a pre-paid card to manage the direct payment. The Council closed the case on 12 October 2019 and Mr and Mrs X have since been self-funding 40 hours per year mentoring support with Provider A.
  10. Mrs X complained to the Ombudsman and in November 2019 we recommended the Council start a stage two investigation into Mrs X’s complaint. The stage 2 investigator issued a report in January 2020 making findings on three areas of complaint:
      1. The Council removed social care support for [Y], who is a child in need, without assessing his needs or following due process. This complaint was partially upheld on the basis that Council failed to complete a single assessment in February 2019 to ensure all Y’s needs were fully assessed and considered before deciding to close the case to children’s social care. The investigator concluded that Y’s level of need was within the remit for TAF and did not meet the criteria for ongoing social care involvement but did recognise that additional support could have been offered to the family at least four months prior to closing the case.
      2. The Council wrongly made Mrs X have direct payments. The investigator did not uphold this complaint and said that Y’s parents had not been forced to have direct payments but had chosen not to take advantage of the service and chosen to self-fund Y’s mentoring support. The investigator said that due to Mr and Mrs X’s financial constraints this was half the amount Y would have received if Mr and Mrs X had taken advantage of the pre-paid card.
      3. Delayed dealing with the complaint and refused to consider the complaint at stage 2. The investigator upheld this complaint.

The stage 2 investigator set out a summary and conclusions and recommended that:

  • Stage 1 responses to be within timescale and inlcude whether they have been upheld or not;
  • Assessments to be completed before families move to TAF plans or direct payments;
  • Pre-paid card to be offered to Mr and Mrs X again to enable Y to receive 80 hours of support per year. Mr and Mrs X to be offered advice about other agencies who can support with administration tasks.
  1. Mrs X remained unsatisfied and on 27 February 2020 asked for her complaint be escalated to stage 3. On 12 March 2020 the Council asked Mrs X to confirm her availability for a panel hearing between 26 March 2020 and 9 April 2020. Following an exchange of emails, the Council told Mrs X that it proposed to delay the panel hearing until July 2020 due to the COVID-19 pandemic.
  2. In early July 2020 Mrs X contacted the Council and requested an update on the panel hearing. The Council responded and explained that due to COVID-19 restrictions, face to face panels were not being held and the position would be reviewed again in two months. It said it was considering holding virtual panels in the interim or Mrs X could wait for a face-to-face hearing. Mrs X accepted the offer of a virtual panel and said they were not available to attend from 7 August 2020 to 1 September 2020. The Council acknowledged Mrs X’s email and asked her to confirm the points she wished to discuss at panel. Mrs X provided this information on 4 September 2020.
  3. Mrs X said the stage 2 investigation had failed to address the complaint as set out by the Ombudsman in November 2019. It was noted that the investigating officer had referred to the Ombudsman’s draft decision and not the final decision.
  4. The Ombudsman’s previous decision set out the scope for the stage 2 investigation as follows:
      1. The Council removed social care support for [Y], who is a child in need, without assessing his needs or following due process;
      2. Wrongly withdrew Y’s support when [Mrs X] refused to accept direct payments;
      3. Delayed dealing with her complaint and refused to consider her complaint at stage 2; and
      4. [Mrs X] said this affected the family’s emotional, mental and behavioural well-being and caused Y to become more vulnerable.

Mrs X said the stage 2 had failed to investigate points b and d.

  1. The Council asked the stage 2 investigating officer to address the points made by Mrs X.
  2. On 10 September 2020 the Council contacted Mrs X on behalf of the chair of the panel. It said the chair had reviewed the information provided by Mrs X and noted that it contained information not included in the stage 2 complaint. It said this information could not be shared with the panel as it was not relevant to the stage 2 complaint, and they did not have consent of the other children. The Council also informed Mrs X that an addendum to the stage 2 report had been prepared and would be forwarded separately, before the hearing.
  3. Mrs X responded the next day and attached consent from their other children to share information with the panel. Mrs X said that she was not happy to receive an addendum to the stage 2 report a few days before the hearing. Mrs X stated that she told the Council that the scope of the stage 2 investigation was wrong when she requested stage 3. Mrs X made it clear that they were happy with the date set of for the panel and did not want ay further delays.
  4. The stage 2 investigator issued an addendum report in response to questions set out by Mrs X in her request for a stage 3 panel hearing.
  5. The investigator acknowledged there were slight changes in wording between the Ombudsman’s draft decision and final decision. The investigator acknowledged the error, apologised and reconsidered the complaint that, the Council wrongly withdrew [Y’s] support when [Mrs X] refused to accept direct payments. The investigator did not uphold this complaint and said the support was not withdrawn due to not accepting direct payment but on the basis, there was no identified role for a social worker and Y’s needs did not meet the threshold for continued social care involvement.
  6. Mrs X said the stage 2 failed to consider how the actions of the Council affected the family’s emotional, mental and behavioural well-being and caused Y to become more vulnerable. The investigator said this impact was considered during the investigation.
  7. The investigator referred to a single assessment completed in February 2020, following the stage 2 report issued in January 2020. The purpose of the assessment was to consider the impact of family relationships on Y’s wellbeing following a deterioration in family circumstances. Mrs X was present at the assessment with Y. The investigator concluded that the assessment did not highlight an increase in Y’s vulnerability and his needs could continue to be supported under the TAF plan. Y did not meet the threshold for social care support. The investigator said that Mrs X did not raise the change in Y’s mentoring support as a significant factor during the assessment.
  8. On 15 September 2020, a day before the panel hearing the Council sent Mrs X and email stating that the chair had recommended that the hearing be postponed. The Council explained:

“…the chair is not able to select documents from the bundle you provided, and as things stand the chair holds the position that none of the documents can be referenced. Therefore the panel would only consider the documents in the original appendices. The council agrees with the chair that you need to be afforded the time and opportunity to offer the additional documents from the bundle which you would like to be considered by the panel”

“The default position is that the chair will accept the council’s addendum, and that it will be accepted by the panel as part of the hearing. Therefore, although you have indicated that you do not accept the addendum, as it will be included in the hearing, you will need time to consider the contents”

  1. The Council said it would still meet with Mrs X at the time scheduled for the panel, to ensure Mrs X had a clear understanding of the reasons for the chair’s decision and as an opportunity for Mrs X to ask any questions. Mrs X declined. Mrs X complained to the Ombudsman about delay by the Council in convening a panel hearing at stage 3.

Analysis

  1. I decided to accept Mrs X’s complaint before completion of the statutory process. This is because there had been a delay in convening a stage 3 panel and the stage 2 report is detailed enough to allow me to reach a view on Mrs X’s complaint.
  2. Having reviewed the correspondence exchanged between Mrs X and the Council, I find the Council failed to arrange and hold a stage 3 Review Panel within the 30 working day timeframe. However, statutory guidance has been amended to provide councils with some flexibility during the Covid-19 pandemic. The Council says the panel hearing was delayed due to the pandemic. I am not finding it at fault for this. The Council postponed the panel hearing a day before it was scheduled. This is fault. The Council had the opportunity to make this decision sooner. This delay added to Mrs X’s distress.
  3. Mrs X disagrees with the stage two investigator’s findings on the single assessment and says the Council withdrew 80 hours per year of mentoring support for her Y without properly assessing his care needs. It is not for the Ombudsman’s to decide if a person has social care needs, or if they are entitled to receive services from the Council. The Ombudsman’s role is to establish if there has been administrative fault in the way the Council reached its decision.
  4. Y is a disabled child, and the Council has a duty to assess his needs to ensure it provides services to promote his welfare if needed. The Council failed to complete a single assessment in February 2019 to ensure all Y’s needs were fully assessed and considered before deciding to move Y from the Disabled Children’s Team to the Early Help Team. This is fault.
  5. At the time of completing the addendum report in September 2020 the investigating officer had sight of the single assessment completed in February 2020. The assessment concluded that Y’s needs were being well supported by the TAF process already in place for Y and his emotional wellbeing was to be monitored by involved professionals. The assessment confirmed that Y did not meet the threshold for the Disabled Children’s Team and there was no identified statutory need for social care involvement. I have no reason to think that if the Council had completed the single assessment in February 2019, it would not have resulted in a different outcome. However, the fault would have caused Mrs X uncertainty and frustration at the time.
  6. It is Mrs X’s view that the Council wrongly withdrew Y’s support when she refused to accept direct payments. It is clear that the Council had agreed that Y should receive 80 hours of mentoring support until August 2020. The Council had a duty to ensure that Y received this support. The parent or young person must agree to a personal budget and provision by direct payments. The Council cannot force Mr and Mrs X to accept direct payments for support for Y. It is my view the Council is at fault for suggesting that Mr and Mrs X should pay for service if they refused to accept direct payments.
  7. The stage 2 addendum report stated that support was not withdrawn due to not accepting direct payment but on the basis, there was no identified role for a social worker and Y’s needs did not meet the threshold for continued social care involvement. However, I find this contradicts the Council’s response to my enquiries on this issue. The Council said, “The support [Y] received was ended by Mr and Mrs [X] as they did not wish to receive a one-off direct payment via a pre-paid card”. I also note the comments made by the investigating officer, as to why paying for 40 hours support from Provider A directly was more onerous administratively than doing so by direct payments.
  8. It was the Council that ended the support in October 2019 on the basis that Mr and Mrs X refused to accept a one-off direct payment via a pre-paid card. Mr and Mrs X did not choose to self-fund Y’s support but felt they had no choice, as they did not want to administer direct payments. It was not until the stage 2 report that reference was made to charities who help parents manage direct payments. Managing direct payments can be a complex process and this information should have been provided sooner. The Council did not offer Mr and Mrs X any alternatives to the pre-paid card and there is no evidence the Council considered continuing to pay for the mentoring service. This is fault. In response to my enquiries the Council confirmed that had Mrs X accepted direct payments Y would have continued to receive 80 hours funded support until August 2020.
  9. Mr and Mrs X could only afford to pay for 40 hours of mentoring support and therefore Y was not getting the support the Council assessed him as needing. The Council was aware of this but failed to take any action. The loss of opportunity to access mentoring support Y needed and was entitled to after the support was ended by the Council represents an injustice to Mr and Mrs X and Y.

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Agreed action

  1. Within four weeks of my final decision the Council will:
      1. apologise to Mrs X for the faults identified in this statement;
      2. pay Mrs X the equivalent of 80 hours of mentoring support that Y would have received for the year. This includes payment for 40 hours mentoring support funded by Mrs X and 40 hours of support that was lost. This money should be used for Y’s mentoring support as Mrs X sees best; and
      3. pay Mrs X £500 to acknowledge the additional strain she and the family was placed under while self-funding Y’s support and the significant time and trouble caused to her by the Council’s faults.

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Final decision

  1. I have found fault by the Council causing an injustice to Mrs X and Y. The Council has agreed to my recommendations and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman

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