Summary: The complainant alleged that the Council wrongly refused her assistance for childcare for her disabled daughter during the school holidays and when the complainant required support during a hospital admission and recovery. We find some fault concerning the request for support when the complainant had to go into hospital but cannot conclude the outcome would have been different. The Council has already accepted fault in the initial assessment process, and we have considered the resulting injustice, and recommended a remedy for this. The Council has accepted this. Therefore, we are closing the complaint.

The complaint

1. The complainant, who I refer to as Mrs X, complained to the Council about its failure to provide services during the school holidays, and when she had to go into hospital in 2022 for an operation and had no-one to care for her daughter (Child C) who has complex needs. The Council has investigated the complaints.
2. A summary of the complaints is set out below, including the Council’s decision on them.
1. the Council failed to explain the children and family (C&F) assessment process and treated the complainant with no empathy and was patronising. She was also not updated on dates, progress or the assessment; (council found communication was not timely or effective. It has discussed issue with team);
2. the Council failed to follow appropriate child in need (CIN) processes and the criteria used is a gatekeeping system (council did not find fault);
3. the C&F assessment included errors in spelling, was long and inaccurate (the council agreed to correct the spelling in the assessment, to complete a carer’s assessment, and allocate a new social worker – complaint upheld);
4. the Council failed to assess the complainant as carer for her daughter and husband and has raised concerns about the complainant’s mental health despite not being qualified to do so; (council has partially upheld complaint);
5. the Council failed to provide a personal budget for the complainant’s daughter for care during school holidays, meaning the family were not able to receive respite from caring responsibilities (council carried out an assessment but found the child did not meet the threshold); and
6. the Council generally acted in a way that was patronising and unsupportive, in particular the social worker was unhelpful (partially upheld).
3. As a result of the Council’s alleged faults, the complainant and her family were caused avoidable distress and the complainant was not able to recover properly from her operation because she had the full-time care of her daughter.

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What I have and have not investigated

4. I have not investigated the complaints which the Council has upheld, or partially upheld (complaints a, c, d and f) because the Council has accepted fault. I have considered only what injustice might have been caused and whether there has been an appropriate remedy for injustice.
5. I have investigated complaints b and e.

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The Ombudsman’s role and powers

6. 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)
7. 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)
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 decision with Ofsted.

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How I considered this complaint

9. I made enquiries of the Council and have considered Mrs X’s information. I have also spoken to her on the telephone. I sent a draft decision statement to the Council and to Mrs X and have taken account of their comments before reaching a final decision.

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What I found

10. The Children Act 1989, section 17, 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 regarded as ‘children in need’ and entitled to an assessment under section 17.
11. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in section 2.
12. Services which can be provided under section 2 of the CSDPA include:

• practical assistance in the home including home based short breaks / respite care;
• recreational / educational facilities including community based short breaks; and
• travel and other assistance.

Child in need

13. Section 17(10) defines a child as a child in need if he or she is disabled. A child in need will have a care plan which will be reviewed, normally on a six monthly basis.
14. Schedule 2 Part 1 of the Children Act 1989 says that, where it appears to a council that a child within their area is in need, the authority may assess his needs for the purposes of this Act at the same time as any assessment of needs is made under the Chronically Sick and Disabled Persons Act 1970.
15. The main guidance for assessing children in need is ‘Working Together to Safeguard Children’. The version in force at the time of this complaint is dated March 2018. It advises that the purpose of assessment is always to provide support to address needs to improve the child’s outcomes to make them safe. Assessment should be a dynamic process which analyses and responds to the changing nature and level of need.
16. The timeliness of assessment is a critical element, and the maximum timeframe should be no longer than 45 working days from the point of referral. The assessment should consider all the help that the disabled child requires and consider help for the carer to care for the disabled child.
17. Section 2 of the Chronically Sick and Disabled Persons Act 1970 sets out a wide range of services a disabled child might need including practical assistance in the home, domiciliary care including short breaks in the home and recreational facilities/outings (which would encompass community short breaks). A council should decide whether it is ‘necessary’ to provide services under Section 2 after carrying out an assessment.

Parent carers

18. The Breaks for Carers of Disabled Children Regulations 2011 (the Regulations) requires councils to provide, so far as reasonably practicable, a range of services, which are sufficient to assist carers to continue to provide care or to do so more effectively.
19. The Regulations say a council must ‘have regard’ to the needs of those carers who would be able to provide care for their disabled child more effectively if breaks from caring were given to allow them to:
• undertake education, training or any regular leisure activity
• meet the needs of other children in the family more effectively, or
• carry out day to day tasks which they must perform in order to run their household.
20. Short breaks are part of a range of services to support children in need and include the provision of day, evening, overnight or weekend activities for a child in the child’s own home or in residential care.

Direct payments

21. In 2000, the direct payment scheme was extended to disabled children by way of an amendment to the Children Act 1989.
22. Parents/carers of disabled children can ask for a direct payment (DP) to meet the needs of the child. The council must carry out an assessment and DPs must be sufficient to meet the assessed needs. DPs must be used by the parent/carer to meet the child’s needs. DPs do not affect any benefit entitlement.
23. Persons receiving DPs must agree to DPs and keep and submit accounts.

Special Educational Needs (SEN)

24. The Children and Families Act 2014 introduced new ways to meet the special educational needs, health and care needs of pupils aged 0-25. Councils and its partner agencies will issue an Education, Health and Care (EHC) Plan with different sections setting out a child’s special educational needs (section F), their health needs (section G) and social care needs (section H), and how to meet these.
25. The EHC process requires a council to assess the social care needs in conjunction with carrying out an EHC needs assessment to identify any social care provision which should be treated as special educational needs provision.

The Council’s procedures

26. All referrals are considered by the Council’s Multi Agency Safeguarding Team (MASH).
27. The Council has five threshold criteria to determine what services a child is entitled and referral to the children with disabilities team. Level 1 and 2 is for those who can benefit from universal services; Level 3 is for children in need who might benefit from early help, universal services and short breaks. Level 4 is for children with severe disabilities who require specialist services and moderate to high level support packages. There can also be housing adaptations required. Level 5 is the highest need criteria and is for children who require specialist multi-agency services and have high to intensive personal care and support needs and require longer overnight short breaks and may be in the care of the Council.
28. Where the need is for specialist services at level 4, the referral is passed to the children with disabilities team. The Council’s policy says that this team aims to support children who have a severe and profound learning difficulties, severe physical and health disability and those with complex autistic spectrum or social communication and a degree of sensory impairment. Within the referral process, consideration will be given to referral to the early years panel where on-going family support is required.
29. The Council will carry out assessments to help determine the level of need. These assessments consider the child’s needs, the parents’ ability to meet them and family needs. The Council’s policy says that it will offer direct payments where the assessment identifies that they require this. As I understand the Council’s policy, direct payments can be made where a child in need meets the eligibility criteria for short breaks provision. The Council says that it does not provide direct payments for childcare in holidays.

Facts of this case

30. I have not provided a detailed chronology of what has happened given the Council has upheld some of the complaints. The facts below relate specifically to Mrs X’s request for help with childcare during the school holidays and when Mrs X was due to have an operation in May 2022.
31. Child C has special educational needs. In March 2021, Child C received a diagnosis of Autistic Spectrum Disorder (ASD) with Attention Deficit Hyperactivity Disorder (ADHD) traits. Child C has difficulties with communication, sensory processing and has a restrictive diet. She has an EHC Plan and attends a special unit as part of a mainstream school. Child C has hypermobility and needs to go swimming weekly to help her joints. Mrs X is appealing the current EHC Plan and has asked the SEND Tribunal to make recommendations regarding Child C’s health and social care.
32. Mrs X’s husband is hearing impaired and is registered disabled. Mrs X says that he cannot care for Child C without supervision. Both parents work full-time.

Findings: Complaint (b)-the Council failed to follow the appropriate CIN processes and the criteria used is a gatekeeping system

33. Mrs X requested an assessment because she was asking for direct payments to help fund specialist childcare during the school holidays while both parents worked fulltime. A social worker completed a children and family assessment in March 2022. It was noted that Mr and Mrs X felt they only had each other as support. It was noted that Child C could communicate her direct wishes, but she required time to process information and Mr X sometimes had difficulty in understanding what she was saying. It was noted that Child C had recently started at a primary school named in her EHC Plan which could meet her needs. It was considered by the parents that she was settling well.
34. It was acknowledged that Child C met the criteria of a child in need. But there were no safeguarding concerns and the assessment concluded that it was not appropriate to allocate a social worker. The social worker signed posted Mrs X to specialist services which might be able to offer appropriate care to Child C during the school holidays rather than using standard clubs and childminders. But it was not felt Child C met the criteria for referral to the children with disabilities team because the impact of her disability was not considered profound or severe.
35. The social worker explained that the Council did not provide direct payments to enable parents to purchase childcare during the school holidays. The social worker’s manager approved the decision, stating also that it was agreed that the children with disabilities team would be carrying out an assessment to inform Child C’s EHC Plan in relation to the social care section.
36. Mrs X complained about this assessment and met the team manager and complaints officer with her parent advocate. It was agreed that there would be a parent/carer assessment carried out by a different social worker. The team manager explained that Child C had a singular diagnosis, that she did not meet the criteria for an ongoing service from the children with disabilities team, who worked with those with complex and profound difficulties. Mrs X challenged this, saying that Child C had multiple diagnosis, ADHD and autism, mobility and health needs, was socially isolated, had speech and language difficulties and had no sense of danger.
37. The team manager acknowledged that the criteria for ongoing support was difficult to understand. But she offered a review of the children and family assessment, along with a carer’s assessment of Mr and Mrs X’s support needs.
38. The Council has criteria for access to its services. Generally, the expectation is that an assessment, which identifies a significant need, would lead to the provision of services. But it is not the case that there is a duty to meet every assessed need. Councils can have eligibility criteria to take into account their resources when providing services under section 17 of the Children Act. This may come across as councils preventing access to services, but it is a legitimate way to ensure resources are allocated fairly and transparently.
39. I consider that the Council correctly identified Child C as a child in need and completed a children and family assessment when Mrs X asked for additional help during the holidays. When she complained about the Council’s decision that she was not entitled to holiday support or referral to the children with disabilities team, the Council agreed to review the assessment and complete a carers’ assessment. On that basis, I consider the Council followed the appropriate child in need (CIN) process and was willing to review the information obtained, and the decisions made, to make sure that it was not wrongly refusing Mrs X and Child C appropriate services. So, up to April 2022, I consider that there is no fault by the Council.

Complaint (e): the Council failed to provide a personal budget for the complainant’s care during the school holidays

40. Mrs X was due to go into hospital for a planned operation in May 2022, requiring a week’s stay in hospital and eight weeks recovery period. Mrs X says that she wanted care while she was in hospital and five hours support per week for someone to take Child C swimming, essential for Child C’s mobility needs, while she was recuperating. There was a second assessment which included an assessment of Mr and Mrs X’s support needs. The Council says that the additional information was obtained from Mrs X over the telephone because she was unwilling to meet in person.
41. The carer’s assessment identified that Mrs X felt ‘worn out’ and had little time to herself. It was recommended that there was a referral to Occupational Therapy to see if any help could be provided to help Child C in the community and Mr X could refer himself to Adult Services and/or his General Practitioner (GP) for support and further assessment of his difficulties. It was felt that, if Mr X could provide more support in caring for Child C, that would enable Mrs X to have more time to herself. The Council says that it was considered Mr X would be able to care for Child C while Mrs X was in hospital and afterwards.
42. The conclusion was that Child C remained ineligible for services from the children with disabilities team, but the Council would discuss with Mr and Mrs X whether a Team Around the Child approach would help to give them extra support. It was also stated that information would be passed to the appropriate team for completion of the social care assessment for Child C’s EHC Plan.
43. Because the Council had been unwilling to provide support for childcare, Mrs X said that she had to ask a friend to look after Child C while she was in hospital. And her recovery took much longer because she could not properly rest when she was discharged from hospital.
44. After a review of the child and family assessment, and a separate carer’s assessment, the Council still considered Child C did not meet the criteria for support from the children with disabilities team. The Council correctly signed posted Mr and Mrs X to many other services, which might have been able to offer assistance, and suggested more involvement from the child in need team, if Mrs X wanted. Her specific request for direct payments for a carer for Child C was however refused.
45. In respect of Mrs X’s request for childcare during the holidays, while both parents were at work, it seems the Council’s view has been that this is for the parents to manage albeit advice has been given about where to find the more specialised help Child C required. I am satisfied the Council arrived at this decision after assessing the family situation, and it is not for the Ombudsman to question the merits of the decision reached.
46. In respect of Mrs X’s period in hospital and recuperation, this was different in that Mrs X, as the main carer, was not able to care for Child C when in hospital and would be limited in what she could do while recovering. Therefore, she would be unable and limited in carrying out everyday tasks. In most circumstances, it would be acceptable to consider that a child’s father or a partner would step in to provide the necessary care. In this case, Mr X has recognised difficulties and it seems is unable to care for Child C unsupervised. It is not clear from the evidence that Mr X’s ability to care for Child C unsupervised was fully explored and, on that basis, I consider that there is some fault by the Council. Having said that, I cannot then conclude that, even with more consideration of Mr X’s abilities as a sole carer, the Council’s decision would have been different, and Mrs X would have been entitled to direct payments as she had requested.

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Agreed actions

47. The Council has already accepted some fault in complaints a, c, d and f and has offered a symbolic payment of £300 for the avoidable distress, frustration and hurt feelings caused. Given I have found some fault in complaint e, I recommended a symbolic payment of £500.00 to be paid within one month of the final statement. The Council has agreed to this.
48. In addition, I am aware that Mrs X has asked the SEND Tribunal to make recommendations about any social care required for Child C under her EHC Plan. Dependent on what those recommendations are and, if they are accepted by the Council, it would be appropriate for the Council to consider whether there is any outstanding injustice by not providing this provision sooner. This should be done within six weeks of receiving the SEND Tribunal’s recommendations.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I have found fault causing injustice. The Council has agreed the recommended remedy. I have therefore completed my investigation and am closing the complaint.

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Investigator's decision on behalf of the Ombudsman