Summary: Miss X complained the Council was aware she was struggling to manage her son’s challenging behaviours and meet his needs and has failed to support her family. The Council’s failure to provide the agreed 2:1 support and respite provision over a significant period is fault. This fault has caused Miss X and her family an injustice.

The complaint

1. The complainant whom I shall refer to as Miss X complained the Council has failed to support her family. In particular she complained:
1. Although the Council has agreed her son Y has recognised care needs and has agreed to fund a package of 2:1 care and respite, it has not provided the required support;
2. The Council delayed searching for alternative respite care pending a decision from a residential care provider on whether/ when they could provide support for Y. Miss X states the residential care provider did not have appropriate staff in place to provide the necessary support.
3. The Council failed to properly consider whether her younger son, Z should be a Child in Need, or consider how he could be supported;
4. The Council has delayed in building an agreed extension to Miss X's property which would provide space and facilities for Y on the ground floor, away from his brother, and enable a care package to support Y at home.
5. There have been numerous changes of social workers, and Child in Need meetings have been postponed or cancelled. Miss X is also concerned that targets from Child in Need meetings are not written up or updated.
6. When she requested a home visit in February 2022 the officer she spoke to ended the call and did not provide any assistance.

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What I have and have not investigated

2. Miss X complained the Council has failed to provide appropriate support for her family for over four years but my investigation only focuses on events since January 2021. We expect people to raise their concerns with us within 12 months of them thinking the Council has done something wrong. Miss X complained to us in June 2022 and I have exercised discretion to consider events since the start of 2021. I do not consider it appropriate to exercise discretion beyond this time as could have raised her concerns about the Council’s service with us sooner.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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)
6. 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

7. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Miss X
• Miss X 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

The Children Act 1989

8. 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.
9. 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.
10. Services which can be provided under section 2 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.

11. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly. Statutory guidance published in 2018, (Working Together to Safeguard Children), sets out the legislative requirements placed on individual services.

Assessment of need

12. The expectation of ‘Working Together to Safeguard Children’ is that an assessment which identifies significant needs will generally lead to the provision of services, but it is 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.
13. If a council is satisfied it is ‘necessary’ to provide support services under section 2 of the CSDPA then services must be provided regardless of the council’s resources.

What happened here

14. Miss X lives with her two children, Y and Z. Y has profound and complex disabilities and is dependent on Miss X to meet all his daily needs. He has a Child in Need plan and attends a special needs school with an Education, Health, and Care (EHC) plan to support this placement. Miss X receives direct payments which she has used to pay a family member to help her with Y’s care in the school holidays. She does not consider this an adequate or long term solution and has repeatedly asked for additional support and shared care for Y.
15. Miss X did not want carers to visit and support Y at home. She considered her property was too small for this to be beneficial as it would be intrusive and not allow herself and Z any respite. The Council’s records show a care provider visited Miss X in November 2020 to assess how they would be able to assist Y. The care provider subsequently confirmed they were unable to support Y as the home environment was not suitable for moving and handling.
16. In December 2020 the Council’s specialist short break panel agreed to provide a 12 hour a week befriending service for Y. Miss X did not consider this adequate and maintained the Council should accept shared care for Y. The Council’s records show Miss X told the social worker she was struggling to manage Y’s behaviours and her health was suffering. She had lost weight and her hair was falling out. Miss X was also concerned about the impact on her younger son, Z who was struggling with having little one to one time with Miss X and had developed a tick.
17. The Council did not agree to shared care, but the panel reviewed the short break provision in early February 2021 and agreed to one overnight break a week for a period of four to six weeks. It would then be reviewed. The Council contacted a number of short break providers but were unable to identify a provider who could accommodate Y.
18. In March 2021 the panel suggested Miss X reconsider day time support and again agreed to provide 12 hours a week support. This community support began in April 2021. Miss X raised concerns that the carers were not completing the agreed hours but were bringing Y home early. Miss X did not feel this support was helping the family as she was not able to spend quality time with Z if Y returned home early. Miss X was also unhappy the carers did not administer Y’s medication or feeds. She was still required to do this.
19. In July 2021 Miss X asked the Council to find alternative care providers as she did not feel the existing carers were benefitting the family. Miss X was also concerned about how she would cope over the six week school holiday. The Council’s records show there was discussion around Miss X and Z going away while carers or Y’s grandparents come into the home to care for Y. This did not take place. Y’s grandmother provided some support over the summer but could not provide the level of support she previously had due to her own medical conditions. The Council agreed to a direct payment to enable Miss X to pay for this support.
20. Miss X continued to tell the Council she was unable to manage Y’s behaviours or support his needs, and also care for Z. She identified a respite care provider (Home A) with vacancies who could offer shared care for Y. The Council contacted Home A to arrange a meeting. The Council's records show Home A assessed Y in school in November 2021 and then confirmed they could accept Y for shared care from January 2022.
21. Miss X was unhappy with the delay and reiterated she would struggle to cope without respite. A new care provider started supporting Y in October 2021 for 12 hours each week. This was extended over the Christmas holidays.
22. The Council chased Home A in January and February 2022. The home confirmed it was struggling to recruit staff and that Y’s respite could not start until it had the appropriate staff in place. Home A subsequently advised Y was on a waiting list, but it was likely to be many months before there was a vacancy.
23. As Home A was unable to confirm when a place would be available, in March 2022 the Council began looking for alternative placements. In June 2022 the Council agreed to look for a 52 week residential setting for Y.
24. As there was no residential provision in place in time for the summer holidays, Miss X asked for a further direct payment to enable her to pay for support. The Council also agreed a further payment for the Christmas holidays.

Alterations to the home

25. The Council assessed Miss X’s property and in April 2021 agreed to provide adaptations and an extension so that Y had a bedroom and bathroom downstairs. The Council says the officer dealing with the case was off work sick for a period and then left the Council in August 2021 so the matter was not progressed. The case was reallocated but workloads meant there were further delays.
26. The plans for the extension were completed in October 2021 and the Council applied for planning permission for the works. This was approved in December 2021. The Council advised Miss X in January 2022 that work would shortly begin. It states it then came to light that the ground conditions in the area were very poor and the planed foundations were not suitable. The Council also identified there was a water main directly under the proposed extension. As it is not possible to build over a water main the Council had to request the water authority divert the pipe.
27. It notified Miss X there would be a delay while this was resolved. She asked that a temporary ramp be installed in the meantime to assist her in accessing and leaving the house with Y’s wheelchair. Miss X also asked for the extension to be sound proofed. As this was not included in the original works specification the Council is obtaining a quote for the additional work.
28. In July 2022 the Council arranged for the trees on the site to be removed to allow the water authority access. The water authority confirmed in September 2022 that the water pipe had been diverted, and work could begin.
29. The Council’s contractors then arranged for work on the extension to start at the end of October. Miss X confirmed the initial work to widen the porch and install a new ramp started in early November 2022.

Complaints

30. In September 2021 Miss X made a formal complaint about the lack of support. She said the family had been in crisis for the last 12 months. The Council had agreed they needed help and that Y needed 2:1 support but had not provided this. Miss X said the family could not continue in this way. Miss X said the failure to provide the promised respite now meant that Y would need to go to fulltime residential care until an appropriate package could be found.
31. She had lost a lot of weight and hair was falling out due to the stress of caring for both her children. The lack of support in the school holidays had had a detrimental effect on Z, who had gone to stay with his grandmother as he struggled to cope with Y. Miss X complained she had also asked for support for Z but had not received any.
32. The Council’s response to Miss X’s complaint agreed that Miss X required support caring for Y. It did not dispute the family needed 2:1 support or that Y’s needs were challenging. The Council noted it had struggled to engage services due to Y’s complex needs and Miss X not wanting direct support within the home. It set out the support it had provided in the form of direct payments to pay Y’s grandmother to support Y and the 12 hours of community support. It also set out the attempts it had made to identify respite support.
33. The Council also confirmed it would not agree to Y entering full time care and that shared care was its preferred option. It did not consider moving Y to full time care would be in his best interest. It said it was continuing to source suitable residential providers and had made referrals to local and national residential providers. However there was a lack of availability across the country.
34. Miss X was not satisfied with the Council’s response and asked for her complaint to be escalated to the next stage of the complaint procedure. The Council’s stage two investigation upheld all of Miss X’s complaints as set out in paragraph 1 above, save for complaints 3 and 4. The investigating officer did not uphold Miss X’s request that Z should be a Child in Need as that would be a matter for the relevant professionals to consider. The investigating officer recommended the social worker discuss with Miss X what support may be needed for Z.
35. In relation to Miss X’s complaint about delays in carrying out the agreed extension to her home, the investigating officer made no finding. They did not consider this to be a complaint but rather a request for clarification regarding the progress.
36. The investigating officer made recommendations for actions by the social worker in relation to support for Z; liaising with housing regarding the progress of the extension; and new searches for a respite provider. They also recommended senior management within children’s services consider other forms of support for Miss Y’s family as a respite provider may not be found imminently.
37. The Council accepted the stage two conclusions and recommendations and apologised for the shortcomings in service. As Miss X remained dissatisfied the stage three panel considered her complaint. The panel considered complaint 6 should be partially upheld as it was satisfied the officer had not returned Miss X’s call, but not that they had acted unprofessionally. In addition, the panel considered that complaint 4 was a complaint, not a request for clarification but did not confirm whether or not it was upheld.
38. The panel also made a number of recommendations, including possible approaches to respite provision for Y, the transitional arrangements with adult services, and a care plan for Z.
39. Miss X does not consider this resolves her complaint and has asked the Ombudsman to investigate her concerns. She says they still do not receive the necessary and agreed support and work on the extension only began in 2023.
40. In response to my enquiries the Council again agreed that Miss X needs help with care and that Y needs 2:1 support, however it has not provided her with what she needs. It acknowledged the shared care and house extension do not appear to be progressing and the situation is having a negative impact on Miss X and her other son Z.
41. The Council states it identified three potential placements, but one confirmed they could not meet Y’s needs, another did not have the staff available to meet Y’s needs and the third is currently in the assessment process. It says there is a national shortage of foster and residential provisions for children. In the meantime, it has provided the family with a flexible short breaks package and direct payments.
42. In relation to Miss X’s son Z the Council says it made enquiries with his school about the support he was receiving. It says Z received a sizeable amount of support from universal services and charities. At the school’s request CAMHS completed a psychological assessment in May 2022, he has received counselling and CAMHs have referred him to a bespoke mentoring programme. In addition the Council says it recently offered Miss X the opportunity for Z to be assessed and subject to the Child in Need process but she declined.
43. The Council says Miss X has always been kept up to date with the progress and delays in work required for the extension. A number of these events were unexpected and have proved difficult to deal with and have considerably extended the time it would normally take to deliver the service. It states those events have been outside the Council’s direct control and that officers have expedited works whenever possible. The Council notes that works continue at Miss X’s property and are expected to be complete by the end of February 2023.

Analysis

44. It is clear from the documentation that there have been failings in the service the Council has provided to Miss X. The Council accepts Miss X needs help with care and that Y needs 2:1 support and acknowledges it has not provided this support. These failings in service amount to fault.
45. I recognise there is a current nationwide shortage in foster and residential provision for children with and without disabilities. However, the statutory guidance is clear that if a council is satisfied it is ‘necessary’ to provide support services, then it must provide them, regardless of their resources.
46. I note that work on the extension is now underway, and this is to be welcomed as Miss X believes the additional space it will provide will allow for a package of care at home. This will be beneficial for the whole family.
47. The presence of a mains water pipe under the site of the extension was unfortunate and inevitably delayed the start of works. This issue was clearly beyond the Council’s control, but I consider there were other unnecessary periods of delay in the process.
48. The lack of support and respite care has had a significant impact on Miss X’s family. The Council has accepted the findings and recommendations made by the independent investigator and stage three panel and has apologised for the failings in its service. This is to be welcomed, but I do not consider the apology to be an adequate remedy for the injustice these failings have caused Miss X and her family.
49. Having upheld most of Miss X’s complaints I consider a financial remedy, in recognition of the impact the failings have had on Miss X and her family would be appropriate. The Council was aware that Miss X was struggling to cope with Y’s behaviour and care needs and that this was affecting her own and her family’s health and wellbeing.
50. As my investigation only focuses on events since January 2021, any remedy should reflect the injustice caused by the Council’s failings since January 2021.

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Agreed action

51. The Council has agreed to
• provide a further apology to Miss X for the failings in its service;
• pay Miss X £1,500 to recognise the distress caused. This amount reflects the harm caused to Mrs X as a result of the lack of respite provision;
• pay £1,500 to be used for the benefit of Y in recognition of the distress and difficulties he experienced as a result of the lack of provision;
• pay £1000 to be used for the benefit of Z in recognition of the distress and difficulties he experienced as a result of the lack of provision for his brother;
• Proactively seek a residential placement for Y. The Council should provide us with evidence of the steps it has taken to ensure a suitable residential placement is available as soon as possible.
52. The Council should take this action within one month of the final decision on this complaint and should provide us with evidence it has complied with the above actions.

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Final decision

53. The Council’s failure to provide the agreed 2:1 support and respite provision over a significant period is fault. This fault has caused Miss X and her family an injustice.

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Investigator's decision on behalf of the Ombudsman