Decision : Upheld
Decision date : 08 Sep 2021
The Ombudsman's final decision:
Summary: Mrs X complained the Council failed to provide her daughter, who has several disabilities, with social care support following her discharge from hospital in July 2020. The Council failed to investigate Mrs X’s complaint under the statutory children’s complaints procedure. The Council agreed to arrange and start a stage 2 investigation under the complaints procedures within one month of the final decision. It also agreed to make a symbolic payment for the uncertainty and time and trouble this caused Mrs X.
- Mrs X complained the Council failed to carry out a Child in Need assessment for her daughter F, who has several disabilities, following her discharge from hospital in July 2020. As a result, Mrs X says F and the wider family are still without adequate formal social care support.
- Mrs X said the family is at crisis point and she wants the Council to take responsibility and provide F with the help and support she is entitled to.
What I have investigated
- I have investigated whether the Council properly considered Mrs X’s complaint. I have not investigated the substantive matters for the reasons given in paragraph 27.
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)
- 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.
How I considered this complaint
- I spoke to Mrs X about her complaint and considered the information she provided.
- I considered the Council’s response to Mrs X’s complaint.
- Mrs X and the Council had the opportunity to comment on my draft decision. I considered comments before I made a final decision.
What I found
Child in Need
- Section 17 of the Children Act 1989 defines a child in need as 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 for him of services by a local authority. A child who is disabled is classed as a child in need.
- Section 17(1) of the Children Act imposes a duty on the Council to safeguard and promote the welfare of children within its area who are in need.
- If the family is not happy with the council’s action under s17, and complains to the council, the law says the council should reply to that complaint using the Children Act statutory complaints procedure.
Statutory Complaints Procedure
- The Children Act 1989 and statutory guidance ‘Getting the Best from Complaints’ outlines a statutory complaints process which councils must follow for certain complaints about children’s services.
- The statutory complaints process has three stages:
- local resolution by the Council (Stage 1);
- an investigation by an investigator who will prepare a detailed report and findings (Stage 2). The Council then issues an adjudication letter which sets out its response to the findings; and, if the person making the complaint asks;
- an independent panel to consider their representations (Stage 3).
- An unwelcome or disputed decision
- Delay in decision making or provision of services
- Delivery or non-delivery of services including complaints procedures.
- Attitude of behaviour of staff
- Application of eligibility and assessment criteria
- The impact on a child or young person of the application of a local authority policy; and
- Assessment, care management and review.
- Mrs X has a child, F, who has disabilities and learning difficulties. She is, therefore, defined as a Child in Need (CIN).
- In July 2020 F spent a period of time in hospital. An occupational therapist (OT) said F would require a wheelchair when she was discharged home.
- Mrs X contacted the Council and asked it to carry out a Child in Need assessment on F. Mrs X said the Council told her F needed help from its Early Help Team. Mrs X said both F’s adoption social worker and her doctor sent referrals to the Council in July 2020 asking to carry out a Child in Need assessment. The Council refused and so Mrs X complained.
- The Council responded to Mrs X’s complaint in September 2020 and said she should direct her complaint to the NHS because it related to the hospital not meeting F’s needs.
- Mrs X said the Council eventually agreed to carry out a Child in Need assessment in December 2020, but she said it was not carried out properly. After she raised concerns, it carried out a further one in January 2021. Mrs X said that assessment was flawed, contained false information and understated F’s needs. As a result Mrs X said the information presented to panel was incorrect who decided F was no eligible for support.
- In March 2021 Mrs X complained to us. She said the Council had failed to ensure F was still without adequate care and support. We asked the Council how it intended to deal with Mrs X’s complaints, pointing out that her initial complaint contained matters which were not for the NHS to deal with.
- In July 2021 the Council wrote to Mrs X and declined to investigate her complaint under stage 2 of its complaints procedure.
- Mrs X’s complaint to the Council was about delay and non-delivery of social care services for F following her discharge from hospital. F is a Child in Need as a result of her disabilities. The law is clear that when a family is not happy with a council’s actions under Section 17 of the Children Act 1989 then it should reply using the statutory children’s complaints procedure. Not doing so was fault and meant the Council did not handle Mrs X’s complaint correctly.
- I have considered whether we should investigate Mrs X’s substantive complaints about the lack of care and support provided to F by the Council. However, I have decided the Council should conduct a stage 2 investigation in line with its statutory duty. This is because:
- Mrs X’s complaint was about a lack of care and support for F and a Child in Need assessment following discharge from hospital. The Council did not provide an adequate stage 1 response. Instead, it directed her to the NHS and there is no evidence it made any attempts to address the other concerns.
- It declined to investigate her concerns at stage 2 of its complaints procedure, despite carrying out Child in Need assessments which Mrs X was unhappy with.
- Mrs X was not afforded the independent oversight which the statutory procedure provides.
- Mrs X says F is still without adequate support from the Council, one year after her discharge from hospital. This ongoing injustice warrants investigation under the statutory procedure.
- The Council agreed within one month of the final decision to:
- arrange and start a stage 2 investigation into Mrs X’s complaints under the statutory children’s complaints procedure.
- apologise and pay Mrs X £150 to acknowledge the avoidable uncertainty and time and trouble caused to her by failing to investigate her complaint under the statutory children’s complaints procedure.
- I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by that fault.
Parts of the complaint that I did not investigate
- I did not investigate the substantive matters Mrs X complained about because the Council has not yet properly considered them. If Mrs X remains unhappy at the conclusion of the statutory procedure she can, within 12 months of the Council’s final response, complain again to us.
Investigator's decision on behalf of the Ombudsman