Summary: Mrs B complains the Council has not provided support to her disabled children and about the way it dealt with her complaint. We have found fault that has caused injustice. The Council has agreed to make payments to Mrs B and her family and review its complaints handling.

The complaint

1. Mrs B complains the Council:
• Has not provided the full package of support to her three disabled sons since 2012.
• Has not taken account of her views when changing its provision for disabled children.
• Delayed dealing with her complaint.
2. Mrs B says the lack of provision has had a huge impact on her and her family, who have had to step in to provide support, causing them significant distress and disruption.

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What I have investigated

3. I have considered events from February 2019 to June 2020. I explain why at the end of this statement.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
7. 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.
8. If we are satisfied with an organisation’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

9. I spoke to Mrs B about her complaint and considered the Council’s response to my enquiries and:
• Working together to safeguard children, Statutory Guidance 2018 (“the Guidance”)
• The Children Act Representations Procedure (England) Regulations 2006 (“the Regulations”)
• Getting the best from complaints, Statutory guidance for local authorities on children’s services complaints procedures 2006 (“the complaints guidance”)
• Coronavirus (COVID-19): guidance for children's social care services, April 2020
10. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Children in need

11. Section 17 of the Children Act 1989 requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. Councils therefore assess children to determine their needs.
12. Assessments should take account of the needs of the whole family. While some services may be offered directly to the disabled child, services may also be offered under section 17 to parents or siblings.
13. The expectation of ‘Working Together’ is that an assessment which identifies significant needs will generally lead to the provision of services, but it not the case that there is a duty to meet every assessed need. Whether a service is required is dependent on the nature and extent of the need assessed and the consequences of not providing a service. Councils may use eligibility criteria and take into account their available resources when providing services under section 17 of the Children Act.

Children’s statutory complaints procedure

14. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The complaints guidance explains councils’ responsibilities in more detail.
15. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
16. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 65 working days to complete stage two of the process from the date of request.
17. A senior manager considers the investigator’s report and recommendations to determine the Council’s response. The Council will then write to the complainant with its decision on the complaint and any actions it is taking. This is the adjudication.
18. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The review panel should consider the adequacy of the stage two investigation, reach findings and recommend redress where appropriate. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.
19. In total the whole complaint process should take a maximum of 35 weeks.

The Ombudsman’s approach

20. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
21. The Ombudsman would normally expect a council and complainant to follow the full complaints procedure. The complaints guidance makes clear that: “Where a complaint is accepted at Stage 1, the complainant is entitled to pursue their complaint further through this procedure except in the case of cross boundary issues. In all other instances, once a complaint has entered Stage 1, the local authority is obliged to ensure that the complaint proceeds to Stages 2 and 3 of this procedure, if that is the complainant’s wish”.
22. The Ombudsman published a focus report in 2015 highlighting common failings in the way councils deal with complaints that are within the remit of the children’s statutory procedure. In 2021 further guidance for practitioners was issued setting out our expectations on how statutory complaints should be handled and managed. This says “The decision about progressing to stage two lies with the complainant, not the council. Neither the regulations nor the guidance allow a council to refuse a stage two complaint because the stage one complaint was upheld, or because the council thinks there is no substance to the complaint.”

Complaint handling during the COVID-19 pandemic

23. The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 gave more flexibility for complainants and councils around the right to request a review panel. This was in place from 24 April to 25 September 2020. It said:
• Requests for a panel must be made within 20 working days or as soon as reasonably practicable.
• Councils must convene a review panel within the statutory timescale of 30 working days or as soon as reasonably practicable.
• Review panels to send their report to councils within the statutory timeframe of 5 working days or as soon as reasonably practicable.
• Councils and independent persons should consider the review panel recommendations, determine next steps and send their response to the complainant within the statutory timeframe of 15 days or as soon as reasonably practicable.
24. In May 2020 the Ombudsman published guidance on Good Administrative Practice during the response to COVID-19. This said that, although complaint handling capacity would probably be reduced, “it is important authorities can still deal effectively with the most serious and high risk issues that are brought to them”. We recommended councils planned for a return to normal complaint handling to prevent erosion of their capacity to listen to concerns. Our guidance suggested councils should:
• Be realistic with complainants about timescales;
• Avoid blanket delays dealing with all complaints; and
• Explain delays and deviation from usual processes.
25. On 26 March 2020 the Ombudsman advised local authorities that we would stop requesting information or action by them on complaints we were dealing with, to allow councils to concentrate on their response to the pandemic. The Ombudsman resumed all casework on 29 June 2020.

What happened

26. Mrs B has three sons (X, Y, Z) who have autism and complex needs. The Council put a support package in place in 2012, which provided support in the home for weekday mornings and evenings during term time. In addition, Y and Z had residential short breaks. Mrs B says the support package has never worked well and there have always been gaps in care, which her two eldest daughters had to fill in.
27. In November 2018 the setting that was providing Y with short breaks (Home 1) changed its provision and could no longer offer overnight care. The Council agreed to look for a link carer to provide respite. It would also look for support for X to access the community for six hours per week.
28. The homecare agency terminated its provision in March 2019. A new provider (Agency 1) was commissioned in June 2019. This was to provide two workers to support Y and Z for two hours on weekday mornings and three hours one weekday evening. Mrs B says at the start there were times when only one worker arrived and her older daughters had to help. By October 2019 Y and Z’s child in need plans say this problem had “settled”. During this period, Mrs B suffered a heart attack.
29. Y started accessing short breaks with a new provider (Home 2) in November 2019, as the Council had been unable to recruit a link carer. However, he could only attend one weekend a month, rather than two. X’s support to access the community started in October 2019.
30. In early 2020, one of Agency 1’s workers left and could not be replaced. This meant Mrs B’s daughters had to again step in to help. Z’s short breaks also ended in January 2020. He was able to attend Home 2 instead, but not until April 2020. Mrs B says Z’s short breaks did not start until September 2020.

Mrs B’s complaint

31. Mrs B complained to the Council on 13 February 2020 that she had never received the full package of care that X, Y and Z had been assessed as needing.
32. The Council responded on 27 February. It apologised that the full provision had not been made. This had been due to changes to the Council’s short breaks offer, a shortage of agency carers and a shortage of link carers, despite the Council’s recruitment efforts. The Council was also aware that one of the workers was due to be off soon and the agency was unable to provide cover. The Council was continuing to look for a solution.
33. Mrs B remained dissatisfied and asked to escalate her complaint on 28 February. The Council said the next stage in its process was to arrange a conciliation meeting, which it proposed for 1 April.
34. The first national COVID-19 lockdown started on 25 March. As a result, the Council postponed the conciliation meeting. Mrs B’s husband sadly died in April.
35. Agency 1 terminated its service in April and Mrs B’s family had to step in to help as there was no support in place. The Council suggested Mrs B take direct payments to pay a relative to provide support. On 21 May it agreed a personal budget for the relative to provide 40 hours of support per week.
36. The Council contacted Mrs B on 22 July to offer a new date for the conciliation meeting, which had been delayed as it had put complaints on hold during lockdown.
37. The conciliation meeting was held on 26 August. Mrs B explained that the care packages for X, Y and Z had not been delivered in full since 2012. There had been periods where no care had been provided, in particular on bank holidays or when workers were off. Her adult daughters had had to help, affecting their independence and own lives. The Council apologised that the family had been left without adequate support. It would look into bank holiday cover and whether the personal budget management fees were included in the personal budget. The Council would continue to try to recruit to make the care package more robust.
38. Mrs B also raised concerns about the changes to Home 1 in 2018, which she said had been done without proper consultation with affected families and before alternative provision was available.
39. On 8 September, Mrs B asked the Council for the notes of the conciliation meeting and when she would hear about the bank holiday cover. It replied this should be confirmed by 28 September. Mrs B asked for her complaint to be escalated to stage two on 14 September. She said she did not want other families to be left in similar circumstances, and she wanted to ensure that future support for her sons would be available.
40. The Council replied that it hoped to avoid a stage two investigation, as the Council had already upheld Mrs B’s complaint. It asked Mrs B what resolution she was seeking. She said to prevent problems in future for other families and to rectify the damage done to her daughters’ young adult lives, which had been put on hold.
41. I have seen no evidence of further action by the Council until 1 February 2021, when it appointed an independent investigating officer to take forward the stage two investigation. In response to my enquiries, the Council said delays were caused as several cases had been put on hold during the first COVID-19 lockdown whilst the Council focused on essential services. After that there were only two Investigating Officers who were working through cases one at a time. Mrs B’s complaint was subsequently allocated on 22 January 2021. The Council engaged a company to provide independent investigators in July 2021 to provide more capacity.
42. The investigating officer’s report was issued on 30 May 2021. It noted the Council had already accepted it had not provided the full care package and that the package was “a rather ‘shaky’ arrangement with no room for manoeuvre should there be any sick leave or holidays.” In addition, bank holiday cover was not available. Mrs B had said the carers were not always suitably skilled in working with young people who have disabilities; there were times when they did not arrive; and there were too many changes of staff. Mrs B had always wanted a commissioned service but said she had felt under pressure to accept direct payments to pay her relative. Whilst he was providing support, the Council had not been able to cover his holidays and sick days.
43. The investigating officer did not uphold Mrs B’s complaint about a delay in arranging the conciliation meeting or that the Council had not considered her views about care for children with disabilities. The investigation found that the personal budget management fees had been added to the budget in October 2020 but Mrs B had not been informed. Agency 1 did not provide bank holiday cover, so this issue had not been resolved.
44. The investigating officer recommended that financial redress be made to Mrs B and that families were given an opportunity to present to the panel which allocates resources for care packages.
45. The Council’s adjudication letter was sent on 21 July. The Council formally apologised and offered Mrs B £500 to acknowledge the time and trouble and distress she had been caused. The Council did not agree to families presenting to the panel but would continue to consult with families on proposed service changes.
46. Mrs B remained dissatisfied, so the Council met with her on 2 September to discuss the adjudication. At this meeting, Mrs B said she did not feel the investigation report properly reflected the impact on her family of the failure to provide the full care package. She said her daughters had not had a childhood. They both suffered from depression and anxiety. One had had to leave home and a job to take on the role of caring for her brothers. She felt they deserved substantial compensation for this. Another relative had also had to take on a role of supporting her sons.
47. Mrs B also noted that, as well as lack of consultation around the changes to Home 1, she had not been involved the in the Council’s decision to replace the service she received with an agency or direct payments. The Council suggested Mrs B be involved in a practise workshop so staff could learn from the family’s experiences.
48. The Council then issued a revised adjudication letter. This offered Mrs B £1,500 to acknowledge the distress she had been caused and £500 for her time and trouble. It also offered £1,000 to each daughter to acknowledge the avoidable disruption they had been caused.
49. Mrs B asked to escalate the complaint to stage three on 12 October. She said the Council had still not understood that there had been many times over the years when the care package had been changed without her being consulted. For example, the sudden loss of support on Friday evenings and the change to one worker on some days. These had been withdrawn as the service had not been delivered, not because her sons’ needs had changed. She stressed the importance of talking to families before such changes were made. It was also important that any workshop involved senior managers.
50. Mrs B highlighted the lack of provision which had impacted her family’s health and mental wellbeing and had caused extreme distress. For example:
• X’s support to access the community had not started for nearly two years after it had been assessed as being needed.
• Y was meant to receive two weekends respite each month but had had one and a half years of less than this and one full year with no respite at all.
• Z had had over 9 months without respite.
• There had been months at a time without any care in the mornings.
51. The stage three review panel met on 25 November. It considered the elements of Mrs B’s complaint that had not been upheld. The review panel found the Council had not taken full account of Mrs B’s views as she had not been consulted when her package had been changed. It recommended the Council re-examine the offer of compensation, review the levels of untrained agency staff and issue information to parents about the assessment process.
52. The Council sent its response to the Panel’s recommendations to Mrs B on 23 December 2021. The Council repeated its offer of financial redress, but considered it was not appropriate to make a payment to X, Y and Z as the respite was to benefit Mrs B and her daughters. Mrs B came to the Ombudsman.

My findings

Complaint handling

53. If a council has investigated something under the statutory children’s complaint procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. I have therefore firstly considered whether there was any fault in the way the Council dealt with Mrs B's complaint.
54. There was significant delay in the Council’s handling of Mrs B’s complaint.
55. When Mrs B requested escalation to stage two on 28 February 2020, the Council proposed a post stage one conciliation meeting. This step is not included in the statutory complaints guidance and I find it is fault for the Council to add an additional stage that causes delay in progressing to stage two. If the statutory process had been followed, stage two should have been completed by 3 June 2020.
56. Instead, the Council planned a conciliation meeting, which it then postponed until after 22 July due to the COVID-19 lockdown. The Council says it put all its complaint handling on hold in line with the Ombudsman’s guidance. We did not advise councils to stop investigating all complaints, nor did the Government ease the requirements of the statutory complaints process at stage two. The Council was therefore required to progress Mrs B’s complaint in line with the statutory guidance. It was therefore fault not to progress to stage two in March 2020.
57. After the conciliation meeting, Mrs B again requested escalation to stage two. The Council suggested a stage two investigation was not necessary as it had upheld her complaint. This is fault. Neither the regulations nor the complaints guidance allow a council to refuse a stage two complaint because the stage one complaint was upheld. The statutory guidance says once a complaint has entered stage one, the council must ensure it proceeds to stages two and three if the complainant requests this.
58. Once Mrs B asked to escalate her complaint to stage two a second time, on 14 September, there was a delay until February 2021 in appointing the investigating officer. I accept the Council had a lack of capacity to carry out stage two investigations, but nonetheless it is fault to not meet the deadlines set out in the statutory guidance.
59. After the Council issued its adjudication in July 2021, there was a further meeting and a revised adjudication letter. I do not criticise the Council for attempting to understand and resolve Mrs B’s concerns, but this is again an additional stage which does not appear in the statutory process and which caused further delay. I find it was fault to issue a revised adjudication. When Mrs B was dissatisfied with the outcome of stage two, the Council should have proceeded to stage three.
60. If the statutory children’s complaints process had been followed correctly, Mrs B would have been requesting a stage three review panel by 28 July 2020. At that time, the Government’s COVID-19 flexibilities applied, so the review panel may have taken longer than usual. However, due to the delay between stage one and stage two and the additional adjudication, she did not request a panel until 12 October 2021, after the Government’s flexibilities had ended.
61. I consider that if there had been no fault, it is likely the complaint process would have been completed by 7 October 2020 plus some additional “reasonably practicable” time for requesting and holding the review panel. It was not completed until 23 December 2021, a delay of about a year.
62. This has caused significant time and trouble to Mrs B, who had to continue to pursue her complaint for almost two years whilst suffering health problems, the loss of her husband and supporting three disabled children.
63. Where we find fault in the way a council considered a complaint, we will recommend a remedy for the additional time and trouble the complainant has been caused. The remedy payment is unlikely to be more than £300 but should be adjusted to reflect the degree of extra difficulty experienced by the complainant, and any factors which make the complainant vulnerable. We do not recommend repayment of the actual costs (such as postage and phone calls) associated with making a complaint.
64. Although I have found delay, I have found no fault in the independent investigation itself. The investigating officer had had no previous involvement with the matter. The investigation took account of evidence from a range of sources and addressed each of the complaints. The report shows the investigator weighed the evidence and drew objective conclusions from it. The report is comprehensive and makes relevant recommendations. The investigation was overseen by an independent person. Having considered all the information available to me, I find the stage two investigation was carried out in line with the guidance.
65. I have therefore not re-investigated the whole matter. Instead, I have looked at whether the Council properly considered the findings and recommendations of the stage two report. I have also considered whether there was any fault or injustice that has not been previously identified or remedied.

Provision of support from February 2019 to June 2020

66. The Council’s first complaint response accepted that X, Y and Z’s package had not been provided to the level of assessed need over an extended period of time, although it does not give the details of this. The shortfall was covered by Mrs B’s two older daughters who had to organise their lives to ensure that one of them was always available to provide support.
67. X, Y and Z’s 2019 child in need plans set out the support they had been assessed as requiring. There is evidence that the Council made efforts to recruit link carers and support workers, but ultimately it was not able to always provide sufficient support. This is service failure.
68. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. But service failure may occur and cause an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
69. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
70. Our guidance says a remedy payment for avoidable distress is usually a moderate sum up to £300. In cases where the distress was prolonged up to £1,000 may be justified. Exceptionally, we may recommend more than this and any remedy needs to reflect the severity, length of time, and whether the person is vulnerable.
71. The Council took this guidance into account when it made its second offer of financial redress to Mrs B. I have considered very carefully whether it is sufficient to remedy the injustice caused. My view is that it is not.
72. The service failure meant Mrs B, her daughters and relative, had to step in to support the boys for many hours per week for months at a time, including bank holidays. Whilst families may be expected to provide some support, the unreliability of the care package caused them undue significant stress, inconvenience and frustration. I cannot say that the situation was the cause of her daughters’ anxiety or depression, but I must take into account that it affected their mental health and that they were also grieving.
73. X, Y and Z were also caused injustice as they missed out on services and were disrupted by changes to support. X was unable to access the community for a year and Y and Z both lost access to respite for significant periods.
74. I understand that Mrs B considers her daughters should be compensated for disruption caused to them for around ten years. However, I cannot now remedy the impact on the family from 2012 to 2019 as this is too long ago for me to investigate and make findings. My recommendations relate only to the period since January 2019.

Taking Mrs B’s views into account

75. I have not investigated the way the Council consulted families in 2018 when it made changes to Home 1’s provision. I can therefore make no findings about whether this consultation was flawed. Nonetheless, there was no alternative respite in place for Y when Home 1’s provision changed. I have dealt with that service failure above.
76. Mrs B says when providers changed or when parts of X, Y and Z’s package could not be provided (such as Friday evenings), they were just removed from the package without consulting her. This is fault, as the Guidance stresses the importance of involving children and families in assessments and child in need plans. I cannot say that if Mrs B’s views had been considered more fully, the changes would not have been made, as there were clearly problems in making the provision. Nonetheless, she was caused frustration and distress by changes she had not been consulted about.
77. Mrs B was also keen for the Council to learn from hers and other families’ experiences. The Council offered a workshop, but Mrs B felt one with senior managers was needed. There is no fault by the Council here, but it may wish to review how the voices of families of disabled children can best be heard to improve its practice and services.
78. In response to my draft decision, the Council said it no longer commissioned services from Agency 1.

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Agreed action

79. The Council has agreed to take the following action within two months of my final decision to remedy the injustice I have identified:
• Pay Mrs B:
1. £2,000 to acknowledge the distress caused by service failure from 2019 to 2020
2. £500 to acknowledge the time and trouble caused by fault in complaint handling
3. £500 to acknowledge the distress caused by not being consulted on changes to the care package
• Pay Mrs B’s two eldest daughters £1,500 each to acknowledge the distress caused by service failure from 2019 to 2020.
• Pay X, Y and Z £300 each to acknowledge the loss of service and disruption they were caused from 2019 to 2020.
80. It has also agreed that within three months of my final decision it will review its children’s social care complaints process and amend it to ensure it is in line with the statutory complaints’ guidance. It will report back to the Ombudsman setting out any changes it proposes to make.

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Final decision

81. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Parts of the complaint that I did not investigate

82. I have not investigated events from 2012 to January 2019. This is because we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
83. Mrs B complained to the Council in February 2020. I consider it would have been reasonable for her to complain sooner about lack of provision from 2012.

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Investigator's decision on behalf of the Ombudsman