The Investigation

The complaint

1. Mrs F complained about the Council’s decision in relation to respite support for her disabled children. She complained:

• the amount of respite awarded for her son in 2021 was insufficient, contradicted the social worker’s recommendations and did not meet her son’s or her own needs;

• the Council failed to give reasons for its decision;

• the Council had wrongly ended Child in Need meetings and the support the family was receiving from a disabilities social worker; and

• the Council did not deal with her complaint properly.

2. Mrs F says as a result of the lack of support she and the family are under immense stress and there is a risk of family breakdown.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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) and26A(1), as amended)

4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

5. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))

6. We may investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

7. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)

8. 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 report with Ofsted.

Support for disabled children

9. 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. All disabled children are entitled to an assessment under section 17 of the Act. Assessments should take account of the needs of the whole family.

10. An assessment which identifies significant needs will generally lead to the provision of services, but councils do not have a duty to meet every assessed need. Whether a service is required depends 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. While some services may be offered directly to the disabled child, services may also be offered under section 17 to parents or siblings.

Child in Need plans and meetings

11. When a council assesses a child as being in need and decides to provide services, it should develop a multi-agency child in need plan which sets out which organisations and agencies will provide which services to the child and family.

12. The plan must be reviewed within three months and further reviews should take place at least every six months thereafter. This is usually done by convening regular child in need meetings involving professionals and the parent. The reviews may determine whether the child is no longer a child in need and the case can be closed or supported through an Early Help plan.

13. Early Help is support the council gives to children and families where they have additional needs that cannot be met by universal services. The court has said Early Help may be provided for disabled children with lower level needs (R(L and P) v Warwickshire County Council [2015] EWHC 203 (Ad-min)). Birmingham Safeguarding Children Partnership has published guidance on the thresholds of children’s needs. This says children with additional needs may require an intensive or substantial package of support which can be met without the need for statutory social work intervention.

Decisions about provision of services for disabled children

14. The Council has a Community Resource Panel which determines what services to provide to a child in need following an assessment. The panel has an appeals process which has four stages.

• Stage One - decision review by the panel with a different chair.

• Stage Two - decision review by the panel with a different team manager. The fact sheet says this is the end of the process and parents will be advised how to access the Ombudsman or how to complain.

• Stage Three - appeal panel heard by the assistant director. This will consider the rationale for previous decisions, whether the process has been fairly considered and administrated and whether the needs have been appropriately identified leading to a decision which is fair and reasonable. The fact sheet says this is the end of the process and parents will be advised how to access the Ombudsman or how to complain.

• Stage Four – Local Government and Social Care Ombudsman. The fact sheet calls this an Appeal Panel, it says: “If you continue to disagree with our decision you have the right to refer the matter to the Local Government and Social Care Ombudsman, details will be provided at the second stage.”

Children’s statutory complaints procedure

15. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. This includes complaints about

• an unwelcome or disputed decision; and

• quantity, frequency, change or cost of a service.

16. The first stage of the procedure is local resolution. 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 of the procedure, councils appoint 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 two investigation, they can ask for a stage three review by an independent panel.

17. If a council has investigated something under this procedure, we 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.

18. We would normally expect a council and complainant to follow the full complaints procedure. Statutory guidance sets out the circumstances in which a complaint can be referred to us without completing all three stages. This can only happen when the stage two investigation is robust with all complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.

19. We 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 we issued further guidance for practitioners setting out our expectations on how statutory complaints should be handled and managed.

How we considered this complaint

20. We produced this report after examining relevant documents, including:

• Statutory Guidance Working Together to Safeguard Children;

• Statutory Guidance Getting the best from complaints;

• Birmingham Children’s Trust Information Fact Sheet Disabled Children's Social Care - Appeals Process for Community Resources Panel (version 1.1); and

• Birmingham Children’s Trust Complaints Policy & Procedure, August 2019.

21. Birmingham Children’s Trust is a body which is independent of the Council. Because it provides children’s services on behalf of the Council, we have the power to look at its actions and hold the Council to account for any fault identified. We have therefore referred to the actions of the Trust as being those of the Council in this report.

22. Mrs F’s complaint has not been through the statutory children’s complaint procedure. However, we have exercised our discretion to investigate because our guidance says a complainant can approach us at any time in the procedure and that we might accept a complaint earlier if, for example, there had already been significant delay.

23. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

Background

24. Mr and Mrs F have a son, J, and a daughter, K. Both have autism, anxiety, difficulties with communication and can have challenging behaviour. Mrs F also has autism. In July 2018, mental health services referred J to the Council due to him harming himself and others. It was also noted that K had a diagnosis of depression.

25. The Council carried out a section 17 assessment in March 2019, when J was in secondary school and K in primary school. This found that J and K were being kept safe and their basic care needs were met, but this was at the expense of their parents. The assessment said that without support the situation was unlikely to be sustainable and the family were nearing crisis point. J needed regular opportunities to socialise outside the family and K needed her parents to have regular opportunities to rest. The assessment recommended short respite breaks for both J and K.

26. The Council agreed to provide J with direct payments for support to access the community for 12 hours a month, plus 30 hours for the school holiday. It would provide K with two overnight short breaks a month. Child in need plans were developed, J was referred to the Disabled Children's Family Support Team and monthly child in need meetings started.

27. The Council changed J’s support package to two overnight short breaks a month in January 2020 and started searching for a suitable foster carer to provide them. The national COVID-19 lockdown started before J’s short breaks were put in place.

Request for increase in support package

28. In October 2020 Mrs F requested a review of J’s short breaks support. She said J’s foster carer had made extra hours available. This was because there had been a delay in providing support due to the COVID-19 lockdown, and J was not able to attend school as he could not manage the COVID-19 restrictions. This had put extra pressure on the family.

29. Mrs F therefore asked the Council to increase J’s package from two nights a month to every other weekend and a midweek night every week (a total of eight to ten nights a month). This was supported by J’s school and the mental health service.

30. A family support worker carried out a section 17 assessment. This found the family was near breaking point as J’s behaviour had become more challenging. The assessment recommended an increase in the short breaks to two weekends a month and one night a week.

31. The Community Resource Panel considered this assessment on 8 December 2020. It agreed to increase J’s package to four nights a month. The decision letter to Mrs F said “Please note each Foster Carer looks after up to 10 children per annum and each child has a standard 2 overnights per month, the assessments reflects J’s needs and this is why an increase has been approved.”

32. Mrs F asked to appeal this decision. There are no more case records until 22 February 2021 when it is noted that the panel was due to review the decision the next day.

33. The panel, with a different chair, decided to continue the current provision of four nights a month. The decision letter to Mrs F said “The extra nights previously agreed was an arrangement with yourself and the Foster Carer who had the extra nights due to the limited amount of children. In an emergency you can have extra nights if the Foster Carer has the availability however, this is temporary in times of crisis.”

34. A social worker emailed Mrs F saying if she wished to appeal “the next stage was the complaints process”. Mrs F sent an email to the complaints team.

35. The next record is that on 26 April the social worker contacted Mrs F to say she had been allocated to re-assess J and K. It is unclear whether this was because of a request from Mrs F or a request from the panel due to her appeal. The Council temporarily increased J’s respite to six overnight short breaks whilst the case was being re-assessed.

36. The social worker completed a new section 17 assessment on 22 June. This recommended the Council should either increase the current package or maintain the interim package of six nights a month, otherwise it was likely the family would break down. The assessment also says “[an increase in provision] could potentially change the short break plan into [J] becoming a child in care by virtue of the number of nights.”

37. The panel, chaired by the assistant director, considered the provision for J and K on 29 June. It decided to continue with four nights a month for J and two nights a month for K. The decision letter does not give any reasons for the panel’s decision.

Mrs F’s appeal

38. Mrs F appealed the panel’s decision on 10 August 2021. We have not seen any evidence of a response to her, although there is evidence the social worker was asking colleagues when the appeal would be heard.

39. In September 2021 the child in need meeting decided J and K’s child in need plans could be stepped down to a family support worker with Early Help reviews and that monthly meetings with a disabilities social worker were no longer necessary. This was because there were no safeguarding concerns.

40. The Council wrote to Mrs F in January 2022. It said it should have referred her to the Ombudsman in August 2021. This was because there had already been an appeal panel in June, so the case could not be considered again. The Council apologised that an appeal had been incorrectly timetabled for November 2021 as the manager had been unaware of the previous appeal. This had caused some confusion which had taken time to clarify. Mrs F came to us.

41. In February 2022 a social worker emailed Mrs F saying “we have been instructed to close this case … due to LGO involvement”. Then, in response to Mrs F’s concern about this, the Council said “the case has been transferred to the family support short breaks team … the council asks that your appeal is further reviewed by the LGO.”

42. In response to our enquiries the Council said its practice was that once an assessment has been completed and a package of support put in place, children were stepped down to the short breaks team and did not have a social worker between reviews. The allocation of a social worker was not dependent on any appeals or complaints. It apologised that this was not properly explained to Mrs F.

Conclusions

J and K’s respite support

43. We are not an appeals body. It is not our role to review the evidence available to the panel and reach a decision on how much respite J and K should receive. Where officers take a decision having considered all the evidence and reached a professional judgement, we cannot intervene if the decision was properly taken. A decision will not be fault simply because Mrs F disagrees with it.

44. However, we find the Council’s notes of the panel’s decisions and its decision letters to Mrs F lack detail about what factors the panel considered and why it decided four nights respite for J was sufficient to meet his and the family’s needs. There is no explanation given about why the panel did not agree with the section 17 assessments which had found he needed more care than this. Our principles of good administrative practice say the basis on which decisions are made and resources allocated should be open and transparent. Decision reasons should be clear, evidence based and explained. We therefore find fault in the decision letters and case records.

45. We cannot say that if there had been no fault the Council would have agreed to provide J with more than four nights of respite. But Mrs F is left with uncertainty about whether the case was properly considered and why the decision was made. That is her injustice. We note that the Council did temporarily increase the respite provision from four to six nights for a period after April 2021, which remedies some of this injustice.

Child in Need meetings

46. Mrs F complained that the Council wrongly ended the child in need meetings and moved J and K to a family support worker rather than social worker.

47. J and K are children in need as they are disabled children. The Council has a duty to assess children in need, provide services where necessary and have child in need plans which are reviewed at least every six months. However, it is not required to hold monthly child in need meetings or to allocate social workers to them. As set out in paragraph 13, the Council can determine that children with additional needs do not require statutory social work support. We find no fault.

Mrs F’s appeal

48. After the panel decided in December 2020 to provide J with four nights respite, Mrs F appealed. The panel reviewed its decision on 23 February 2021 with a different chair. This is in line with its appeal process.

49. The Council says when the panel next considered J’s and K’s provision on 29 June 2021 this was the stage three appeal panel. However, this panel followed a fresh section 17 assessment which was carried out in April 2021. We therefore consider that this was not an appeal panel but a new decision based on a new assessment.

50. This means that when Mrs F appealed in August 2021 the Council should have reviewed that decision. Its failure to do so was fault.

51. We cannot say that if there had been a review of the decision after August 2021 the Council would have changed its decision about the number of nights for J. But Mrs F has been caused time and trouble by the delay and by having to come to us.

The Council’s appeal and complaints process

52. We find fault in the Council’s panel appeal process and complaint policy.

53. The Council says that following an unsuccessful appeal, parents should come to the Ombudsman. This policy wrongly excludes the statutory children’s complaint procedure which children and parents are entitled to use. It also leads to early referrals to us which we cannot normally accept as the statutory children’s complaint process has not been followed.

54. The Council’s complaint procedure says it is “not a means by which the merits of decisions or professional judgements can be challenged because they are unfavourable or in dispute.” This is not in line with the Getting the best from complaints statutory guidance, which says all complaints about children’s social care services, including services for disabled children, must go through the statutory children’s complaint process. This includes complaints about “disputed decisions” and the “quantity of a service”.

55. In response to our enquiries, the Council said that it does not consider complaints where there is an alternative appeal process but it does accept complaints about “how the decisions of the Community Resources Panel were made – separate and distinct from a challenge to or disagreement with the decision itself”.

56. Our view is this reasoning is flawed. A parent is unlikely to complain about the decision-making process if they agree with the panel’s decision. In addition, the children’s complaint process is statutory; councils have a duty to allow parents and children to use it and they may use it if they have a complaint the Council has failed to meet the assessed needs of the child and/or carer or if there is a service failure. The complaints process can review how the panel made its decision and either recommend a new decision or recommend the panel take the decision again. And the complaint investigator is not confined to looking at the panel’s decision, they may also find there is a systemic failure in the Council’s process. We would therefore expect the Council to signpost parents to the children’s statutory complaints process following an unsuccessful appeal.

57. In 2019 we found fault with the Council on this point. In that case (18 013 857) we said:

“The Council disagrees it is at fault as it considers it would be reviewing the same decision twice if it considered Y’s care package through its internal review procedure and the statutory complaints procedure. But the key point is the complaints procedure is statutory so the Trust has a duty to investigate complaints covered by this procedure. Mr and Mrs X’s complaint about Y’s care package is a complaint covered by the statutory complaints procedure.

Furthermore, the guidance does not exclude a complaint subject to a council’s own appeal procedure from the statutory complaints procedure. We therefore remain of the view the Trust is at fault for not signposting Mr and Mrs X to the statutory complaints procedure. The Trust should review its complaints procedure to ensure it complies with the statutory complaints procedure.”

58. The complaint procedure the Council has sent us is dated 2019 so it is unclear if it reviewed its policy following our decision as it has not changed its practice.

59. We find the Council’s processes are flawed and have the potential to hamper and delay people’s access to the statutory complaint process they are entitled to and be an inefficient use of public resources.

60. During our investigation, we became concerned this fault may have affected others who have not complained to us. Under our powers set out under paragraph 26D of the Local Government Act 1974, we asked the Council how many others had appealed a decision made by the Community Resource Panel since April 2021. In response the Council said there had been 27 appeals to the panel since April 2021. These appellants have therefore missed out on an opportunity to have an independent investigation. This creates uncertainty to them that their cases were properly investigated or reviewed.

61. Birmingham Children’s Trust provide services for children on behalf of the Council. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although we found fault with the actions of the Trust, we have made recommendations to the Council.

Recommendations

62. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

63. In addition to the requirements set out above the Council has agreed to take the following action to remedy the injustice identified in this report.

• Write to Mrs F with an apology and an explanation of why and how the panel reached its decision in June 2021.

• Pay her £300 to acknowledge the uncertainty caused.

• Pay her £200 to acknowledge the time and trouble she was put to due to fault in the appeal process.

• Advise appellants to the appeals panel since April 2021 that, if they are unhappy with the outcome of the panel they can complain to the Council under the statutory complaints procedure.

• Amend its complaint policy and appeal process to ensure those who raise complaints about children services have the opportunity to access the statutory children’s complaints procedure, in line with the law and statutory guidance and provide evidence to us that it has done so. The Council has already implemented this.

Decision

64. We find there was fault causing injustice. The Council has agreed to our recommended actions, so we have completed our investigation.

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