Decision : Upheld
Decision date : 26 Oct 2021
The Ombudsman's final decision:
Summary: There was fault by the Council in its handling of Ms B’s complaint made under the statutory children’s complaints procedure. The complaint took too long to complete the complaints process and the consideration failed to properly remedy the complaints that were upheld. The Council will take the action detailed in this decision statement to recognise the injustice Ms B was caused by these failings.
- The complainant, whom I shall refer to as Ms B, complains that Wokingham Borough Council is at fault in relation to issues related to providing her with support with her child when she asked for this and in its handling of her complaint about this. Specifically she says it:
- delayed for a significant period in finding a residential educational placement for her child after this was identified as a need and also after she signed an agreement under section 20 of the Children Act 1989 in June 2019 agreeing that he would be accommodated because she was struggling significantly to cope with him at home;
- failed to complete a carer’s assessment despite several requests for this; and
- delayed significantly in considering Ms B’s complaint under the children’s statutory complaints procedure taking two years to complete its consideration and then offered inadequate remedy for the faults identified.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I discussed the complaint with Ms B and made written enquiries of the Council. I considered all the information before reaching a draft decision on the complaint.
- 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.
- Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What should have happened
- 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 Investigator 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 a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
- There are statutory time limits for the completion of each of the three stages of the statutory children’s complaints procedure. This provides for:
- 10 working days, and a maximum of 20 working days, to provide a response at stage 1;
- 25 days at stage 2 which may be increased to 65 days with the agreement of the complainant; and
- a stage 3 review panel must be held within 30 days of the complainant’s request for this.
- X is now nine years old. He is recorded as being diagnosed with Attention Deficit Hyperactivity Disorder, Oppositional Defiance Disorder and an Attachment Disorder. X has an Education, Health and Care Plan.
- X was permanently excluded from school when he was seven years old and in year 3 at primary school in February 2019.
- A chronology provided by the Council states that Ms B signed paperwork for X to be accommodated under section 20 of the Children Act 1989 in June 2019. The paperwork provided by the Council in response to my enquiries on this however shows that Ms B signed a section 20 agreement in mid-August 2019.
- X began to be looked after in September 2019 when he began living in a children’s residential care home.
- Legal proceedings started in October 2020 when the court awarded the council an Interim Care Order (ICO). X remains the subject of an ICO and is in a 52 week a year residential school placement.
Details of X’s schooling history
- X was permanently excluded from the school in February 2019 after he seriously injured two members of teaching staff. One hour a day of teaching at a PRU was offered until a residential placement could be identified.
- The Council confirms that between February and December 2019 X did not receive any education. It says it could not identify any school that could meet X’s needs because of the degree of physical aggression he displayed.
- The Council says that in September 2019 (when he began living in a residential care home) it identified a school for X but the school was unable to manage him and additionally Ms B is reported to have said that X was not able to attend school at that time as he wasn’t ready.
- From December 2019 to January 2020 the Council says it arranged online tuition for X but that X’s engagement with this was inconsistent.
- From January 2020 to end March 2020 the Council says it provided tuition provided by a tutor and offered one to two hours a day. The Council says that X engaged well with this and so the Council planned to increase this provision to include additional lessons provided away from home. The Council says it identified a location for this to take place but that the beginning of the national lockdown period in late March 2020 affected this.
- Instead it says that between March and September 2020 (when all children were not attending school due to the Covid pandemic) his residential placement put in place some “structured education and activities”. The Council says that during the period X was reported to be “…engaging well wit other children and he stated he wanted to go to school like other children”. The council says the SEN team and the Virtual Head were consulting with local schools to try to identify a placement for when school returned after the Covid lockdown in September 2020. The PRU offered a placement from September 2020 but only if he attended in person from September 2020. Ms B did not feel he was ready to manage this but from September 2020 to December 2020 X was enrolled at the PRU.
- From December 2020 to the present time X has been living in a 52 week a year residential school placement.
Request for a residential placement for X
- The first mention of a therapeutic or residential placement for X appears to have been made in November 2018 when X’s then school asked for an early review of X’s EHC Plan due to concern that they would not meet his needs. The Council says a recommendation was put forward for a specialist placement at that time.
- The council’s chronology notes that in June 2019 the Council’s education department agreed to fund a residential school placement for X but states that the health provider would not agree to make its contribution so it could not go ahead.
- Another different specialist residential school placement was then identified in June but felt it could not keep X safe due to the proximity of a busy road.
- As I understand it from Ms B, X moved into a residential care placement in September 2019 and remained there until December 2020 when he moved to a 52 week a year residential educational placement where he remains.
Ms B’s approaches to the Council for help
- In its comments the Council says that Ms B had made initial contact with Council in March 2018. X was six years old. In April 2018 Ms B completed a Parent Carer Self Assessment Form. On the form she stated X:
- Needed constant supervision as he was unable to keep himself safe and had no awareness of danger;
- Had threatened himself and Ms B with a knife on several occasions;
- Physically attacked her “constantly” causing injury and was aggressive day a night;
- Needed a high degree of emotional support and was a very poor sleeper;
- Behaved in a way that was “…uncontrollable, dangerous and worrying”;
- Needed help and that she had been asking for help since he was 18 months old and that he was, by then, out of control and out of school since September 2017.
- The family was receiving support and advice from a family coach from the Early Help Team;
- X was receiving support from the CAMHS team and there was a plan to also support Ms B and X together over a period of several months to try to address the relationship between them. CAMHS was concerned that Ms B was close to being unable to look after X for much longer as she was so exhausted;
- Ms B’s family had agreed to look after X for the month of August in 2018;
- Children’s services had been involved with X including as a Child in Need and child protection interventions since he was very young. The support provided by a number of agencies over the period of X’s childhood had included three parenting programmes, play therapy for X, art therapy for X, input from educational psychologists and advice from a specialist school;
- The assessment concluded that X was at risk of continuing harm and that a child protection case conference needed to be arranged.
Ms B’s complaint to the Council
- Ms B complained to the Council in late February 2019. Her complaint was about the lack of support she received.
- The Council provided a response 13 days later at stage 1 of the procedure in March 2019.
- In April 2019 the Ombudsman asked the Council to progress Ms B’s complaint to stage 2 of the statutory procedure after she complained to this office.
- Instead the Council offered mediation following the stage 1 outcome agreeing with Ms B that she would not pursue escalation to stage 2 at that time.
- In June 2019 Ms B asked for the complaint to be escalated to stage 2 of the complaints procedure.
- The stage 2 was agreed in July, an investigator and independent person appointed in August 2019 and a statement of complaint agreed in September 2019. The stage 2 reports were completed in December 2019.
- The stage 2 complaint considered included a failure to complete a carer’s assessment and a failure to provide support resulting in the Council instigating child protection measures and a breakdown in the relationship between Ms B and X.
- The stage 2 investigator partially upheld Ms B’s complaint that the Council did not properly prioritise finding a residential educational placement for X between February and September 2019. It was partially upheld as the investigator did not agree with all the examples Ms B provided about this but he did agree that overall the complaint was justified. The investigator upheld Ms B’s complaint that her request for a carer’s assessment was not undertaken. The investigator noted that carer’s assessments are routinely incorporated into the Child and Family Assessments by lots of councils but he said this was not explained to Ms B when she said she had not been given the outcome of her requests for an assessment of her own needs in addition to those of X. The investigator concluded that the case had suffered “from an absence of leadership”. He recommended that:
- The adjudicating officer address Ms B’s request that the Council acknowledge what it had done to her and X and apologise for its failure to address his educational and social care needs and the impact this had on her care of X;
- In future in cases of complex and high risk needs a single senior manager overseeing a risk management plan;
- Consider how carer’s assessments are undertaken and recorded so as to distinguish them form the child’s needs and how the carer’s needs can be reflected in a support plan for them.
- Clear guidance on the eligibility for carer’s assessment was being put in place and would be supported by training for staff in 2020 and that in the immediate term such requests would be overseen by a manager;
- A special educational needs and disability improvement board had been established to address issues of leadership, management and co-ordination of agencies. It included professionals from different organisations and parent representatives;
- The Director of Children’s services had commissioned an independent review of X’s case to learn form mistakes made in his case and to ensure that in further services worked together to get the best outcomes for vulnerable children.
- Ms B’s complaint about the poor handling of her complaint at stage 1 and the delayed progression to stage 2 were wrong and that her complaint about this should be upheld;
- The SEN team had failed to provide the support that X needed and that no priority was given to finding a suitable placement for X;
- That the complaint about the failure to complete a carer’s assessment was upheld and the poor communication about this should be upheld;
- There had been a lack of effective support.
- The original complaint made at stage 1 had not been resolved and said that the complaints team had already addressed this to make sure that in future a manager oversaw the stage 1 process and that complainants were told how to move their complaint to the next stage of the procedure. She apologised to Ms B for this. She also apologised for the avoidable delay in moving the complaint to stage 2 of the procedure. She offered £300 to recognise the avoidable time and trouble that the delayed handling of the complaint had caused Ms B;
- No priority was given to finding a suitable residential placement for X;
- The complaint about the social work manager stating that the criteria for receiving a service from the disabled children’s team were not properly understood was partially upheld;
- That the carer’s assessment was not carried out despite several requests form Ms B and it still not been carried out so she did not receive the support she needed. The adjudicator stated that she acknowledge that the impactr of not carrying out a separate carer’s assessment and that this impacted on the support she may have been able to access as a carer. She said that in future social workers had been told of the need to carry out a separate carer’s assessment;
- Partially upheld her complaint that the absence of proper support resulted in a need for child protection measures and that support promised in the summer holidays was not put in place and this led to a breakdown in Ms B and X’s relationship;
- She acknowledged that support when X had a child in need plan had not been coherent as it was being provided by two social work teams and the SEN team and that the case “suffered from an absence of leadership”; and
- She provided a further apology for the upheld complaints.
Was the Council at fault and did this cause injustice?
- I have carefully considered our jurisdiction in relation to the legal proceedings initiated by the Council in October 2020. I have decided that as the complaints process upheld complaints about aspects of lack of support in 2019 I should consider these but I have not undertaken any broader consideration of the impact of claimed lack of support as Ms B has confirmed to me that these formed part of her case in the current legal proceedings.
- I consider the stage 2 consideration of the complaint was thorough and have therefore accepted the findings of that investigation. With regard to the complaint about the failure to undertake a carer’s assessment I accept the Council’s findings on that: that it did not complete a separate assessment or communicate with Ms B about it. I do also note however that the 2018 social work assessment details a significant amount of support that had been provided over several years which had been put in place to help both X and support the relationship between Ms B and X so it was not the case that she had not received support but it was the case that her own needs had not been specifically addressed. I cannot speculate whether a carer’s assessment may have resulted in additional services or support being provided to Ms B at that time but I agree that the faulty handling of her requests for such an assessment amounts to fault and that this caused Ms B injustice in the form of lost opportunity, distress and frustration.
- I also accept the findings in relation to the delay in finding a residential placement for X after this had been first put forward in late 2018 and I accept that timescale identified by the investigator at stage 2 of the statutory procedure and which was agreed by the stage 2 adjudicator that the period between February and September 2019 was not sufficiently prioritised. This failing also caused Ms B injustice in the form of avoidable frustration, distress and lost opportunity. I have not specifically considered the time it took the Council to identify a residential educational placement as the complaint made originally was about the delay in providing a care placement.
- I do not consider the personal remedy the Council has offered to date in regard to the complaints upheld under the complaints procedure is sufficient to recognise the injustice these caused to Ms B.
- The Council says that it has made a number of procedural changes as a result of the issues raised in Ms B’s complaint. With the exception of a flow chart of actions on handling complaints made under the statutory process I have seen no evidence that the remaining changes have been made. I have no grounds to believe it has not done these but have not been provided with any evidence of them so will ask that it addresses this below.
- With regard to the complaints process I consider there was avoidable delay in starting stage 2 of the procedure (which the stage 3 panel also identified) and with completing the process in its entirety. The Council accepts that is spent too long in between stages trying to mediate before moving on to the next stage. Whilst there is nothing wrong with councils trying to resolve complaints between the stages of the process we consider this is only acceptable if it does not delay consideration of the complaint according to the statutory timescales and if the complainant is aware that they do not have to participate in such mediation. It is clear that, even taking account the delays in August and September that were the result of Ms B asking to rearrange the review panel, the process took too long and this amounts to fault that caused Ms B injustice in the form of avoidable time and trouble and frustration.
- To recognise the injustice caused to Ms B the Council will, within one month of the date of the final decision on this complaint:
- make a payment of £1000 to recognise the frustration, distress and lost opportunity of failing to sufficiently prioritise and actively pursue a residential placement for X between February and September 2019 when this had been clearly identified as a need;
- make a further payment of £250 to acknowledge the injustice caused by the poor handling of Ms B’s repeated requests for a carer’s assessment; and
- also make the payment of £500 it has already offered to Ms B to recognise the avoidable time and trouble and frustration she was caused by the poor handling of her complaint under the statutory complaints procedure.
- the advice provided to social workers of the need to complete separate carer’s assessments;
- the changes of management in the children and disabilities team which will address the concerns about the absence of leadership in the case in future cases; and
- the training for managers on responding effectively to stage 1 complaints.
- There was fault by the Council that has resulted in injustice to Ms B. The Council will take the action outlined above to recognise this.
Investigator's decision on behalf of the Ombudsman