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West Sussex County Council (20 007 732)

Category : Children's care services > Disabled children

Decision : Upheld

Decision date : 30 Nov 2021

The Ombudsman's final decision:

Summary: Mrs Y complains the Council did not complete a suitable assessment of her son, Child A’s needs, which meant he missed support. Mrs Y also complains about how the Council handled her complaint. The Ombudsman finds fault with the Council for delaying an assessment for disability aids, and for not considering Mrs Y’s complaint under the statutory complaints process. The Ombudsman does not find fault with the Council for how it carried out a Child and Family assessment on Child A. The Council has agreed to consider a remedy for the injustice to Child A and service improvements.

The complaint

  1. Mrs Y complains the Council’s assessment of her son’s needs was not comprehensive and did not accurately record his needs or views. This has caused her son to not receive the support he should be receiving.
  2. Mrs Y complains the Council did not suitably communicate with her about her son’s assessment. Mrs Y says the Council delayed finishing the assessment and failed to provide her with a copy until after she complained.
  3. Mrs Y also complains about the Council’s handling of her complaint. She says the Council has failed to take the action it set out in its complaint response.

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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. 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)
  3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. Mrs Y and her son, Child A, are being represented by a legal representative, Mr X. I have considered Mrs Y’s complaint and additional information provided by her legal representative. I have also considered information by the Council. I considered comments from Mrs Y, Mr X and the Council on a draft of my decision.
  2. 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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What I found

Statutory children’s social care complaints procedure

  1. The Government has provided statutory guidance for local authorities, ‘Getting the Best from Complaints’, on the operation of the statutory complaints procedure (’the Guidance’). This sets out which services a person may complain about under the procedure and which are not covered.
  2. Generally, complaints about matters relating to child in need assessments and services should be considered under the procedure.
  3. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigating Officer and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If the complainant is not satisfied at the end of this process they may complain to the Ombudsman.

Child in Need

  1. The definition of a child in need is a child who is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision of services by a local authority. It includes children who are disabled.

What happened

  1. An SEN professional referred Child A to the Council in November 2019. The referral stated that Child A was struggling with his needs and request an assessment to explore support for Child A and his family. The referral also requested an assessment for specialist equipment for Child A’s disabilities, and for a personal budget.
  2. Mrs Y and the first referrer did not hear from the Council about the referral. In March 2020, Mrs Y referred herself and her son to the Council and provided a copy of the previous referral.
  3. The Council agreed to complete a child and family assessment to explore Child A’s needs and the concerns raised. It said the Council had sent the previous referral to the Early Help team who were supposed to contact Mrs Y. Mrs Y said the Early Help team told her it could not support her and to re-refer herself to children’s services.
  4. The Council completed the child and family assessment. As part of the assessment, the social worker carried out two home visits. The social worker noted in the assessment the social worker could not gain Child A’s views. The assessment recognised that Child A would benefit from one-to-one sessions with a family support worker during this time.
  5. The Council completed its assessment and found there was no further action as Child A was being supported by other services. The Council kept the case open while one to one sessions were completed with Child A. The Council then closed the case.
  6. Mrs Y complained to the Council about the assessment. She felt the Council had not recorded her sons needs and voice, and as a result he was not going to receive the support he needed.
  7. Mrs Y also complained about some errors in the assessment and about how the Council had communicated with her. Mrs Y also complained the Council had not completed the assessment for disability aids for Child A.
  8. In the Council’s complaint response, it said the assessment had been basic as it had identified Child A did not have a high level of need that needed support from the Council. The stage two response upheld Mrs Y’s complaint that the Council had not assessed her son for the disability aids.
  9. Mrs Y remained unhappy with the Council’s response and asked a legal representative to bring her complaint to the Ombudsman.

Analysis

Assessment and Child in Need

  1. The first referral for Child A to the Council raised concerns about Child A’s mental wellbeing and how he was coping with his disability.
  2. The Council’s complaint response accepts the assessment was “basic” but said this was because Child A did not have a high level of need.
  3. I have reviewed all the records from the first contact with the Council, the assessment and all contact with Child A and his family.
  4. The Council completed the child and family assessment without Child A’s views. The Council says this is because COVID-19 prevented some home visits. I accept that this issue took place at the beginning of the pandemic when it was unclear how Council’s would manage contact.
  5. The assessment recognises that Child A’s views needed to be obtained, and recorded the social worker believed that Child A would benefit from one-to-one sessions to discuss his anxieties.
  6. Mrs Y did not receive a copy of the assessment for a significant amount of time after the Council completed it. When she received a copy, the initial outcome was “Child in Need”, however, the Council closed Child A’s case after his one-to-one sessions.
  7. I am believe the social worker for Child A recognised the case needed to remain open to gain Child A’s views and complete direct work. However, the data system used by the Council gave few choices of how to keep the case open. Therefore, the choice of “Child In Need” was selected.
  8. Once the Council had completed the direct work with Child A, it amended the record to remove Child In Need and replace it with “no Further Action”.
  9. Although the Council did not get Child A’s views during the assessment, the social worker recognised this in the assessment and kept the case open until his views were obtained. I have reviewed the records from the one-to- one sessions, including documents written by Child A. I am satisfied the Council did seek his views and used them to inform the decision that no further action was needed.
  10. The limits placed on the Council’s data administration system in this case have resulted in confusion about why the case was kept open. In this case, I am of the view that it has not caused injustice as the decision remained as “no Further Action”.
  11. However, I am not satisfied that this would apply to all cases where staff are selecting “Child In Need” at the end of an assessment in order to complete work that does not meet the “Child in Need” threshold.
  12. This is fault by the Council, and the Council should consider whether there is a better way this can be managed for staff in the future. This would avoid any future injustice.

The decision for No Further Action

  1. I have reviewed the assessment for Child A and the Council’s response at stage 2 about why the assessment was “basic”.
  2. The Council says Child A did not have a high level of need that would need a detailed assessment.
  3. The Council did eventually seek Child A’s views on what support he needed. The Council decided there was no further role it could play in Child A’s support as he already had the correct support in place.
  4. The delay in collecting Child A’s views would have meant the Council would have made the same decision, just earlier. The Council felt it had collected enough information to make a decision. It had assessed Child A and completed direct work to gain his views.
  5. I appreciate Mrs Y remains believes the Council should have provided further support, however I cannot question whether a council’s decision is right or wrong simply because Mrs Y disagrees with it. I must consider whether there was fault in the way the Council reached its decision.
  6. I can see no fault in how the Council considered the information it collected to make this decision, and therefore it is not a decision I can challenge.

Referral for disability aids

  1. In the first referral for support, the referral asked for an assessment for disability aids for Child A’s disability.
  2. The Council did not recognise this part of the referral or respond to the person who made the referral.
  3. Mrs Y referred herself with the same information in March 2020. This referral also included the referral for disability aid. The Council did not recognise or act on this request.
  4. When Mrs Y complained to the Council, she complained the Council had not responded or acted on this request.
  5. In its complaint response, the Council recognised it had missed this request for support. It said it would complete an assessment for disability aid.
  6. When Mrs Y complained to the Ombudsman, the Council had still not completed the assessment. As part of my investigation, I asked the Council when the assessment was due to be completed.
  7. The Council has only arranged to do this after the Ombudsman made enquiries. This means Child A has waited nearly two years for the assessment for equipment. This was fault by the Council causing Child A significant injustice
  8. The Council said the assessment was due to take place in October 2021 and is underway.
  9. However, as I have not yet received the results of the assessment I cannot yet say how significant the injustice to Child A has been.
  10. The Council should carry out the assessment and decide if Child A needs any disability aids. It should also decide if Child A would have needed these aids when the referral was initially made two years ago.
  11. If the Council determines that Child A should have had disability aids from the time of the first referral, it should consider providing a remedy to Child A for the time he was without the correct aids.

Request for a personal budget

  1. In the initial referral, a request for Child A to have a personal budget was made.
  2. I asked the Council if a response to this was ever given. The Council advised that as no needs were identified during the assessment for the Council to support, no personal budget was given.
  3. I accept this as a reasonable explanation from the Council. Personal budgets are given to children who have identified needs for which the Council has a duty to support.
  4. In this case, the Council assessed Child A and did not identify needs the Council could support, and therefore a personal budget was not allocated.

Statutory complaints process

  1. As part of my investigation, I have considered whether the Council’s complaints process suitably handled Mrs Y’s complaint.
  2. The children’s statutory complaints process sets out how Councils should consider complaints about several issues about children’s services. This includes any complaints about children’s services assessments.
  3. The Council did not consider Mrs Y’s complaint under the statutory procedure. When asked by the Ombudsman why it had not done this, the Council said this was because part of Mrs Y’s complaint was about how the Council communicated with her.
  4. It is my view Mrs Y’s complaint centred around the assessment her child had received. She remained unhappy about how the assessment had been conducted and what the Council had recorded in the assessment.
  5. Although Mrs Y also complained about communication with the Council, most of the complaint was about the assessment, and therefore should have been considered by the Council under the statutory procedure.
  6. By failing to do this, the Council has failed to give Mrs Y the opportunity to have her complaint considered by an independent person. It also meant that Mrs Y had to bring her complaint to the Ombudsman instead of the Council carrying out its statutory duty. This was fault by the Council.
  7. It is my view there is no injustice to Mrs Y by the Council’s actions, as she bought her complaint to the Ombudsman who has investigated as an independent person.
  8. The Ombudsman has addressed this issue directly with the Council and reminded the Council of its duty to consider complaints under the statutory procedure. It is therefore my view that no further remedy is needed.

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Agreed action

  1. Within 4 weeks of my decision the Council should
  • Write to Mrs Y and apologise for delaying the assessment for Child A’s disability aid.
  • Review the outcome of the assessment. If Child A should have had disability aids, the Council should consider the significance of not having the aids, and remedy Child A according to the Ombudsman’s guidance on remedies. If Mrs Y remains unhappy with any proposed remedy from the Council, she can bring the complaint back to the Ombudsman.
  1. Within 12 weeks of my decision the Council should
  • Consider whether there is a more suitable method for cases to be kept open that can be used by staff where Child In Need is not a suitable choice.
  • Communicate with staff about the appropriateness of using Child in Need records when the case does not meet the threshold.
  • Consider whether this administrative error has impacted on any other cases held with the Council.

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Final decision

  1. I have now completed my investigation. I find fault with the Council for delaying an assessment for disability aids, and for not considering the complaint under the statutory procedure. I do not find fault with the Council for how it completed the Child and Family assessment.

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Investigator's decision on behalf of the Ombudsman

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