Summary: Miss Y complains about the process followed by the Council when assessing her son’s social care needs. Miss Y also complains about delays in the application process for a Disabled Facilities Grant (DFG). We find fault in some parts of the complaint, and the Council has agreed to undertake the actions listed at the end of this statement.

The complaint

1. Miss Y complains about how the Council assessed her son’s social care needs. In particular she complains about delays in completing the initial assessment; failure to re-assess when it was clear his situation was not properly reflected in the initial assessment; failed to explain why he does not meet the criteria for support from the disability team and delays in arranging an occupational therapy assessment in order to allow her to access a disabled facilities grant.

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The Ombudsman’s role and powers

2. 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)
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. 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

6. During my investigation, I spoke with Miss Y and considered the complaint.
7. I made enquiries of the Council and considered its response.
8. I issued my draft decision to the Council and Miss Y to invite their comments. I considered any comments received before making a final decision.
9. 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.

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What I found

What happened

10. Miss Y’s son, W, has Autism and Asperger’s syndrome. Miss Y contacted the Council on 18 June 2021 to request a needs assessment for W. While several actions happened, including a recommendation for a Team Around the Family meeting, the referral for the assessment was not allocated to the correct team until 6 October. In June 2021 the Council also completed a disability screener and determined that W did not meet the threshold for support from the disability team.
11. A social worker met with Miss Y and W to complete the assessment. It noted W has Autism or Asperger’s syndrome. At the time of the assessment, W was not attending school due to anxiety and was undergoing tests for chronic fatigue syndrome. The record of the assessment notes that Miss Y wanted an occupational therapist assessment for W.
12. The social worker noted the disability screener and that it had been determined the threshold was not met for W to receive support from the disability team. He said he understood on some levels why this decision was made, for example, W did not need help with personal care, did not attend a specialist school and he could express his wishes and feelings. However, he felt that was also an argument that W’s autism and fatigue was having a severe and profound effect on how he carries out his own personal care, how he expresses himself and how he attends school. The social worker felt this may need to be reviewed again in the future if W’s support needs were not met.
13. The assessment detailed actions that should take place. This included an occupational therapy assessment to look at W’s needs at school and at home to ensure both spaces meet his needs and are safe for him. For speech and language therapy services to review an assessment already completed and apply the recommendations so W can receive the support without having to travel out of county. For W to attend hospital school until these actions are completed.
14. Miss Y made a complaint to the Council in October 2021 and the Council replied on 11 November. This complaint concerned W’s educational provision but also included delays in securing the occupational therapy assessment. The Council said that all therapy services were experiencing a very high volume of referrals as well as dealing with the backlog caused by the COVID-19 pandemic. It upheld Miss Y’s complaint and agreed to make an occupational therapy referral no later than 10 November.
15. Miss Y made a formal complaint to the Council in respect of her dissatisfaction with the social care response in January 2022. The Council responded on 22 February, apologising for the delay. It accepted there were delays before the case was allocated to the assessment team on 6 October 2021. It apologised to Miss Y and agreed that the process leading up to the assessment did not ensure the best outcomes for W.
16. The Council said that at the time of the assessment it was believed W would be out of school for four to six weeks before being integrated back into school. It acknowledged that this had been reviewed and a longer timescale provided. It said there had been a recent EHCP meeting which produced a plan for moving forward and that the occupational therapy referral had been made.
17. Miss Y also raised concerns about W not being considered a disabled child and the Council had not shared the criteria or reasons for this. The Council said that the screening assesses against a severe learning disability and that as this is not applicable to W, he does not meet the threshold for being considered a disabled child. It said it had considered his eligibility as part of this case, but the threshold was not met.
18. The Council also acknowledged that Miss Y requested information about how to access the disabled facilities grant and had received no response. It apologised and said that grants were available for children who had had an occupational therapy assessment. It said she would need to contact the specialist children’s occupational therapist service at the NHS foundation trust that holds responsibility for this on behalf of the Council.

Was there fault in the Council’s actions causing injustice to Miss Y and W?

Delay in completion of initial assessment

19. Although the Council says it completed W’s assessment within the 45-day statutory timescale once allocated, it has acknowledged and apologised for the initial delay in allocating W’s case.
20. In response to Miss Y’s complaint, the Council accepted that W’s case should have been allocated to the assessment team sooner and a failure to do so was not in the best interests of W. The Council also said the pathways for disabled children are not as well defined as they should be, and the Council will work with its parent-carer forum to improve the services following lessons learnt from Miss Y’s complaint.
21. The Council has already provided a financial remedy for W’s missed provision, which is dealt with in more detail in the related complaint 22006803. Therefore I am not persuaded the delay caused any unremedied injustice for W. However, it did create injustice for Miss Y, and the Council should pay £150 in recognition of the frustration, time and trouble caused by its delay.

Failure to re-assess W when Miss Y highlighted errors

22. Miss Y asked the Council to reassess W because the single assessment noted that he would likely be out of school for 4-6 weeks whilst the hospital school worked to help reintegrate W. Unfortunately the reintegration was not successful and W did not return to the school named on his EHCP at the time.
23. The Council says this was an anticipated timescale and that a further assessment undertaken by the hospital school suggested a much longer timescale. Miss Y says this presented a significant change which should have prompted a new assessment. The Council said a new assessment would not achieve anything different and the outcome would be the same.
24. Since sharing my draft decision, Miss Y has received the SEND Tribunal decision. She says the Tribunal has asked the Council to complete a new social care assessment for W. As this matter has already been considered by a Tribunal, I have not investigated the Council’s refusal to re-assess W.

Failure to explain why W is not eligible for support from the disability team

25. In response to Miss Y’s complaint, the Council confirmed W has additional needs and that his family would benefit from support. But in its professional view, W’s needs could be met with the support outlined in the single assessment. As W does not have a severe learning disability, the Council says his needs are not best met by the disabled child team.
26. The Council has discretion to decide how to organise its resources amongst teams and how to delegate its legal duties. It is not fault for a Council to impose criteria to help decide which teams to direct families to, as long as it does not fetter its direction to consider the needs of young people with less severe needs. I am mindful that support for other disabled children, including those with mild or moderate learning disabilities, will be available through early intervention or wider social work teams.
27. In my view, there is no fault in this aspect of Miss Y’s complaint. Not only is there no fault, but there is no injustice because the Council considered W’s needs through the single assessment process and arranged the necessary support.

Delay in arranging an occupational therapy assessment for a DFG

28. The Council says Miss Y’s GP made a referral for OT in March 2021 and W was placed on a waiting list. The single assessment also noted the need for an OT assessment. In the Council’s view, this was necessary because it would help inform the support to be provided to W and would determine the need for a DFG.
29. The Council acknowledges that it did not provide information to Miss Y when she asked for advice about DFGs. The Council also clarified that it does not have its own in-house OT service; instead, this responsibility is delegated to the local NHS Trust. The Council is not responsible for the NHS waiting times and if this was a concern for Miss Y, she would need to direct her complaint to the Trust.
30. However the Council does retain overall responsibility to decide what adaptations are ‘necessary and appropriate’ for W. After this, the local district council will provide a grant application form and a guidance booklet. It is not clear from the information we have whether W’s case progressed this far. Given his referral for OT was made nearly two years ago, I would anticipate matters to have progressed by now and so the Council will complete the actions listed in the section below.
31. If Miss Y is successful in obtaining a DFG for W, she may wish to complain to the Council, and the LGSCO, again so that we can measure any unremedied injustice caused by delay.

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Agreed action

32. With six weeks of my final decision, the Council will provide evidence of the following:
• £150 payment to Miss Y in recognition of the time and trouble caused by the delay in allocating W’s case for assessment.
• Make contact with Miss Y to progress her request for a DFG, in line with its local protocol; and
• Provide details of the work undertaken by the Council to clarify the pathway for parents and carers to request a single assessment.

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Final decision

33. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions are an appropriate remedy for the injustice.

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Investigator's decision on behalf of the Ombudsman