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Derbyshire County Council (20 008 437)

Category : Children's care services > Disabled children

Decision : Upheld

Decision date : 05 Nov 2021

The Ombudsman's final decision:

Summary: the Council has undertaken three social care assessments, all of which have been found to be unsatisfactory. The Council apologised, agreed to undertake a further assessment, overseen by a senior manager, and backdate any support offered. The Council has apologised for delays in its complaint response and offered a symbolic payment for Mr and Mrs P’s time and trouble. This is a satisfactory outcome.

The complaint

  1. Mr and Mrs P complain about the Council’s response to their request for support to care for their daughter, G. They are unhappy with the Council’s response to their complaint.

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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)

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How I considered this complaint

  1. I have considered:
    • information provided by Mr and Mrs P; and
    • information provided by the Council, including its response to their complaint.
  2. I invited Mr and Mr P and the Council to comment on my draft decision.

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What I found

  1. Mr and Mrs P’s daughter, G, has autism.
  2. Mr and Mrs P asked the Council for support in May 2019. The Council undertook an assessment and decided Mr and Mrs P were not eligible for support. Mr and Mrs P complained. They challenged the accuracy of the assessment and the Council’s decision they were not eligible for support.
  3. In response, the Council completed a second assessment in February 2020. Again, the Council decided Mr and Mrs P were not eligible for support. Again, Mr and Mrs P challenged the accuracy of the assessment and the Council’s decision they were not eligible for support.
  4. The Council completed a third assessment in June 2020. This time the Council agreed to provide support. However, Mr and Mrs P were not satisfied with the support offered and challenged the accuracy of the assessment and the Council’s decision.
  5. The Council agreed to complete a fourth assessment, overseen by a senior manager, by January 2021. The Council said if this assessment recommended an increase in support, it would backdate any payments.

Mr and Mrs P’s complaints to the Council

  1. Mr and Mrs P first complained on 16 October 2019. The Council responded on 6 December 2019.
  2. Mr and Mrs P remained dissatisfied, so the Council appointed an independent investigator in March 2020 to investigate Mr and Mrs P’s complaints at the second stage of the Children Act complaints process.
  3. The independent investigator completed her investigation and issued a report in October 2020.
  4. Mr and Mrs P remained dissatisfied and asked the Council to arrange for a complaint review panel to consider their complaint at the third and final stage of the Children Act complaints process. They also made a new complaint about the Council’s complaint response.
  5. The relationship between Mr and Mrs P and the Council broke down, so the Ombudsman agreed an ‘early referral’ instead of the complaint review panel. We also agreed to consider Mr and Mrs P’s complaint about the Council’s complaint handling.

The Children Act complaints process

  1. The Children Act complaints process is a formal procedure, set out in law, which councils must follow to investigate certain types of complaint. It involves:
    • a written response from the Council (Stage 1);
    • the appointment of an independent investigator to prepare a report (Stage 2); and, if the person making the complaint requests
    • an independent panel to consider their representations (Stage 3).
  2. Regulations set out the timescales for the process. The Council should provide a response at Stage 1 within 10 working days, at Stage 2 within 25 working days (or exceptionally within 65 working days) and convene a review panel at Stage 3 within 30 working days.
  3. When a council has investigated a complaint under the Children Act complaints process, the Ombudsman would not normally re-investigate it. We may consider whether a council has properly considered the findings and recommendations of the independent investigator and review panel, and any remedy the Council offers.

The Council’s response to Mr and Mrs P’s complaints

  1. The independent investigator investigated 15 complaints. She made no finding on two complaints and upheld the remaining 13. I am satisfied the independent investigator carried out a fair and thorough investigation. I agree with her findings and recommendations. I do not intend to investigate matters further myself.
  2. I do not intend to repeat the independent investigator’s findings here, but in summary she found:
    • the first assessment was flawed because it failed to properly consider the resources available to Mr and Mrs P to meet G’s needs;
    • the Council failed to discuss the assessment with Mr and Mrs P before finalising it;
    • the second assessment failed to properly consider Mr and Mrs P’s needs as carers; and
    • there were inaccuracies in the third assessment, which also failed to consider Mr and Mrs P’s needs as carers.
  3. The independent investigator recommended a fresh assessment, although she noted she could not recommend the services Mr and Mrs P wanted as any decision would depend on the outcome of the assessment.
  4. The Council accepted the independent investigator’s findings and recommendations in full. Following the independent investigation, the Council agreed to undertake the fourth assessment, overseen by a senior manager, and backdate any additional provision recommended.
  5. The independent investigator was also critical of the Council’s complaints team. She complained about the difficulties she had in her dealings with the Council. The independent person, who is appointed to oversee the investigation, was critical of the independent investigator’s decision to interview officers by email rather than face-to-face. Mr and Mrs P were critical of the Council’s handling of their complaint.
  6. The Council registered a new complaint about the complaints process and had appointed a new independent investigator when Mr and Mrs P asked the Ombudsman to consider the matter. We accepted the complaint, and we all agreed the Council did not need to continue with the independent investigation.

Consideration

  1. The independent investigator has identified serious problems. The Council has undertaken three social care assessments, all of which have been found to be inadequate. This is fault.
  2. Similar problems were identified by Ofsted, the Regulator, in its 2019 inspection of the Council’s Children’s Services. Ofsted concluded the quality and timeliness of assessment and planning for children in need, including disabled children, was not consistently good and so “required improvement”.
  3. The Council’s complaint response also took too long. The Council did not meet the timescales set out in the regulations.
  4. The independent investigator blames the Council for delays in her investigation. The Council rejects some of her criticisms. There was considerable space devoted to their disagreement in the independent investigator’s report and the Council’s adjudication. Ultimately, the Council is responsible for managing the process and ensuring it runs to time. The Council apologised for the delay and offered Mr and Mrs P a payment of £300. I consider this a satisfactory response. It would have been better if the independent investigator and the Council had resolved their differences in private.
  5. Mr and Mrs P reject the payment offered by the Council. They are unhappy the Council described it as an ‘ex gratia’ payment and do not consider £300 sufficient.
  6. They want an investigation of the role of the complaints manager and adjudicating officer in their dealings with the Council; a robust resolution action plan; more support for G; and an investigation of the complaints process.
  7. I do not intend to investigate the matter further. The Council has apologised for the faults identified by the independent investigator; it has apologised for the delay in the complaints process; it has offered a payment of £300 for Mr and Mrs P’s time and trouble pursuing their complaint; it has agreed to re-assess Mr and Mrs P’s eligibility for support and backdate any payment should the assessment recommend increased support. I note from reports to the Council’s cabinet published online that the Director of Children’s Services produced an action plan to address the problems identified by Ofsted during the 2019 inspection which affected Mr and Mrs P. Taken together, I consider these actions an appropriate response to Mr and Mrs P’s complaint.

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Final decision

  1. I have completed my investigation. There was fault by the Council, but the Council offered a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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