Summary: Miss B says the Council delayed completing child and family/carer/home safety assessments, delayed completing adaptations, failed to properly consider the level of support her son requires, failed to put in place suitable alternative school transport, delayed implementing recommendations following a complaint and delayed responding to a stage three complaint. The Council delayed carrying out various assessments, failed to properly consider a request for 2:1 support for Miss B’s son, failed to consider putting in place alternative transport and delayed implementing recommendations. An apology, payment to Miss B, a meeting with Miss B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained the Council:
• delayed carrying out a home safety assessment;
• failed to carry out all the adaptations identified following that assessment;
• delayed completing a carer assessment;
• failed to properly consider the level of support her son needs;
• failed to ensure her son receives sufficient support during school holidays;
• failed to consider providing alternative school transport;
• delayed implementing the recommendations following stage two; and
• delayed responding to her complaint at stage three.
2. Miss B says the Council’s actions have caused her a significant amount of stress and has placed her son at risk of injury.

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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 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. 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, Miss B's comments and the documentation Miss B provided;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Miss B and the organisation 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

What should have happened

9. 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.
10. 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.
11. 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.
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. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. Where a referral is accepted under section 17 the Council should lead a multi-agency assessment and compete it within 45 working days. Where the Council’s children’s social care decides to provide services, it should develop a multiagency child in need plan which sets out which organisations and agencies will provide which services to the child and family.
14. 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.
15. The Children Act 1989 and Breaks for Carers of Disabled Children Regulations 2011 require councils to provide a range of services designed to assist family carers of disabled children to continue to provide care, or to do so more effectively, by giving them breaks from caring. These services must include a range of daytime care, overnight care and leisure activities. This range of services must be set out in a ‘short breaks statement’ and include details of any eligibility criteria.
16. The Children Act 1989 (as amended by the Children and Families Act 2014) places specific duties on councils to assess the needs of carers with parental responsibility for disabled children as well as young carers. Councils have an obligation to assess parent carers on the ‘appearance of need,’ or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.
17. The Council has a short break service statement (service statement). This says short breaks are for children with disabilities to spend time away from their carers, to try out new things, have fun and make new friends. It says short breaks can provide families with a chance to have a break from their caring responsibilities and do ordinary things together. The short break can be a few hours, evenings, overnight, weekend and school holiday daytime activities and can take place in the person’s own home, at a carers home or in other settings. That includes holiday playschemes and after-school clubs.
18. The service statement says regular and ongoing childcare is not a short break.
19. The service statement says applications for short breaks will be referred to the short breaks panel. It says the panel will ensure the allocation of short break hours and support is based on assessed need and will meet the needs of the child or young person.
20. The service statement says after the panel’s decision the Council will write to the applicant within 10 working days to confirm the outcome and provide a list of commissioned providers.
21. The service statement says the short break package will be provided either through a commissioned service or by direct payment. The Council allocates hours as a package for the applicant to use between 1 April and 31 March of the following year.
22. The service statement says the applicant can use their allocated hours at weekends, on weekdays or during school holidays.
23. The service statement says a direct payment is an alternative to an allocation of hours and aims to give more flexibility in how services are provided to families. The direct payment is a sum of money paid to the family so the parents can purchase short breaks and is an alternative to using the service providers the Council has a contract with to provide services. It says the applicant can receive a direct payment or a short break allocation but not both.

What happened

24. Miss B’s son has special educational needs and received 104 hours short breaks in 2021. Miss B receives a direct payment for that. Miss B asked for an increase in the number of hours allocated. The Council’s short breaks panel considered that request in September 2021 but did not increase the number of hours.
25. Following a referral from child and adolescent mental health services (CAMHS) the Council agreed to carry out a child and family assessment. That began in October 2021.
26. In October 2021 Miss B told the Council she felt it was unsafe for her to keep driving her son to school as he was constantly coming out of the car seat and jumping on her and getting in the back of the boot. Miss B was concerned about having an accident and asked whether the Council could arrange for transportation until a harness arrived or whether there was any alternative available. In response the Council agreed to contact the company Miss B had ordered a car seat from to chase it. I understand Miss B later received a harness but had to return it as it was unsuitable. That prompted Miss B to ask the Council for any other suggestions.
27. A senior behaviour psychologist contacted the Council in November 2021 to raise concerns about Miss B’s son’s safety as he had got out of the car while Miss B was filling it up the previous day. The psychologist noted Miss B needed respite.
28. A Council social worker completed a child and family assessment in November 2021 and a child in need meeting took place in December 2021. The Council agreed to refer the case to the short breaks panel to consider 2:1 support for Miss B’s son. Pending that decision the Council agreed an additional 50 hours short breaks. That was approved by the short breaks panel in January 2022 when it did not agree the 2:1 hours requested by the social worker.
29. In January 2022 Miss B asked the Council whether it could provide an escort for her in her car while she was dropping her son off at school and picking him up. The Council said it could not do that but would make a referral to the occupational therapist. That was in relation to a harness, helmet for Miss B’s son and for a home safety assessment.
30. At a meeting with Miss B in February the Council told her as she had a direct payment she could either use that or have commissioned services but not both. The Council later provided Miss B with details of an agency that could provide a support worker and issued a child in need plan.
31. An occupational therapist visited Miss B in February 2022. The occupational therapist recommended trellis on the fencing in the garden, window locks, perspex on the bannister and anti-climb paint on the drainpipe. The occupational therapist later noted as Miss B was due to be evicted as the property was being sold the Council would not fund major adaptation works at the property.
32. In April 2022 Miss B told the Council she needed more hours for her son. In response the Council pointed out Miss B had 154 hours available to her each year and as she had a direct payment it was her responsibility to identify any provision. Miss B asked for 2:1 provision. That was supported in a letter from CAMHS in May 2022.
33. Miss B chased the Council about the home safety recommendations from the occupational therapist in June 2022.
34. In July 2022 the short breaks panel agreed to allocate 2:1 level of support for Miss B’s son. That increased the provision to 308 hours per year. The Council provided Miss B with a list of commissioned agencies she could contact for support with her son and reminded her it was her responsibility to contact the agencies.
35. The Council identified a summer play scheme for Miss B’s son in July 2022 and told her about it. Miss B told the Council she did not have sufficient funding and asked for an increase in hours. The Council told Miss B she would need to use her existing 308 hours first. The Council later provided Miss B with details of responses it had received from various providers with schemes available during school holidays.
36. The home safety works recommended by the occupational therapist were completed in October 2022.
37. The Council completed a carer assessment for Miss B in October 2022. That assessment concluded the existing allocation of 308 short breaks hours was sufficient to provide Miss B with respite from her caring role.
38. In December 2022 the Council sent Miss B a list of agencies available to provide outreach support. The Council also directed Miss B to the local offer and suggested looking at services in a neighbouring borough by checking their local offer. When Miss B asked for more hours the Council again advised her she needed to use the hours she had already been allocated before the Council could refer the case to the short breaks panel to seek more hours. At that point Miss B had £2,103.84 remaining in her direct payments account.

Analysis

39. Miss B says the Council delayed carrying out a home safety assessment for her son which put him at risk for longer than he should have been. The Council accepts there was a delay carrying out the home safety assessment. That is fault. The evidence I have seen satisfies me the necessary adaptations were not undertaken at Miss B’s property until October 2022. That is despite the occupational therapist completing the assessment in February 2022. The Council accepts there was also a delay here. That is also fault. As remedy for that the Council offered Miss B £325 to reflect the delay completing the home adaptations which is based on £25 per month for 13 months. I consider a more appropriate financial remedy would be £600 to reflect the fact the safety measures were delayed and were required to protect Miss B’s son. The Council has agreed to my recommendation.
40. Miss B says the Council delayed completing a carer assessment and failed to provide her with any support as a carer. The Council accepts it failed to properly consider Miss B’s needs as carer when completing the child and family assessments. The Council also accepts there was a delay completing the carer assessment. That is fault.
41. I am satisfied though the Council carried out the carer assessment in October 2022 properly. It is clear from the outcome of that assessment the Council was satisfied Miss B already had sufficient provision in place to recognise her needs as a carer. The Council is referring here to the provision of direct payments for short breaks. I am satisfied short breaks are in place partly to provide some stimulation to Miss B’s son but also to provide Miss B with respite. As I am satisfied the Council properly assessed Miss B’s role as carer in October 2022 and is satisfied the short breaks provision in place will provide her with the respite she needs I have no grounds on which I could criticise it. Nor could I conclude Miss B missed out on provision due to a failure to properly consider her needs as carer before October 2022 given the October 2022 assessment did not result in the provision of more services.
42. I am aware though Miss B says the Council failed to properly consider the level of support her son requires. Miss B says the amount of hours the Council has allocated are not clear and do not reflect her son’s level of need.
43. The evidence I have seen shows at the start of the period I am considering Miss B’s son had 104 short breaks hours. As I said earlier, that was partly to provide stimulation to Miss B’s son and partly to provide Miss B with a break from her caring role. I am also satisfied Miss B received a direct payment for that support. What that meant is Miss B, rather than the Council, was responsible for identifying any short break provision suitable for her son. It was then Miss B’s responsibility to book that provision and pay for it using her direct payment.
44. I am satisfied the social worker asked for more hours for Miss B’s son following an assessment in November 2021. At that stage the social worker asked for an extra 104 hours to reflect the need for 2:1 provision for Miss B’s son given his behavioural issues which were causing difficulties with one person trying to manage him. I am satisfied the Council referred that request to the short breaks panel which considered the case in January 2022. Having considered the documentary evidence from that panel meeting I note the panel awarded an extra 50 hours. However, the notes from the panel meeting do not show any consideration given to the social worker’s request for 2:1 provision for Miss B’s son. Nor is there any explanation in the panel’s consideration of the case about why panel was not satisfied an additional 104 hours were required. In the absence of any evidence to show the panel properly considered whether Miss B’s son required 2:1 provision I cannot say the panel properly considered the case at that point. That is fault.
45. I am also concerned when responding to Miss B’s stage two complaint the Council suggested Miss B could act as the second person rather than two support workers. I consider that an inappropriate suggestion for the Council to make given it had already carried out an assessment which identified Miss B needed a break from her caring role. The Council should therefore have recognised including Miss B as the second carer would not be appropriate. That is also fault. Given that assessment I consider it likely, on the balance of probability, if the panel had properly considered the case in January 2022 it would have agreed 2:1 was required for Miss B’s son and would have increased her hours by 104 hours rather than the 50 agreed.
46. I am satisfied though the Council subsequently agreed 2:1 provision in July 2022 and 308 hours has therefore been in place for Miss B since that date. I note that despite increasing the number of hours available to Miss B she has not used the extra hours the Council provided. I understand this is because of difficulties identifying suitable support workers for Miss B’s son. I understand Miss B’s difficulty here and I do not underestimate the impact this has had on her. However, as I said earlier, as Miss B has a direct payment it is her responsibility rather than the Council’s to identify and put in place suitable support for her son. I am satisfied the Council has tried to help Miss B here by providing her with details of providers that might be suitable for her. The fact Miss B has not been able to use her hours though is not because of fault by the Council. Given Miss B has not used her 2:1 hours to their full capacity since July 2022 I consider it unlikely, on the balance of probability, Miss B would have used those hours if the Council had awarded them in January 2022 rather than July 2022. So, while I consider the Council at fault for not considering 2:1 provision in January 2022 I do not consider it likely this resulted in Miss B’s son missing out on any provision.
47. I consider though that Miss B has suffered an injustice because she has been caused significant distress and frustration at feeling the Council was not taking her concerns seriously. She has also had to go to time and trouble to persuade the Council of the need for 2:1 provision for her son. The Council has offered Miss B £250 to reflect the time and trouble pursuing appropriate services for her son. I consider that a suitable remedy for Miss B for this part of the complaint. I also recommended the Council send a reminder to those sitting on short breaks panels to ensure they properly consider the evidence submitted by social workers and record the reasoning for their decisions, particularly where the panel awards a different amount of hours than the amount recommended by the social worker. The Council has agreed to my recommendation.
48. Miss B has made clear her view the 308 hours the Council has agreed is not a suitable package for her son. Miss B says her son needs more hours. I am satisfied the Council has considered that because it has explained to Miss B on several occasions it cannot award more hours when she is not using hours already provided. I cannot criticise the Council for taking that view given the amount of hours Miss B has available to her which she has not used. As the Council has advised, for the short breaks panel to award more hours it needs to have evidence the hours provided are not enough for Miss B’s son. I am satisfied the Council does not have any evidence of that while Miss B continues to not use the hours allocated to her. Again, I appreciate this is due to difficulties identifying suitable support workers. However, the point is Miss B has a considerable amount of hours still available to her which does not provide evidence for the Council to conclude her son is not receiving enough support with 308 hours.
49. Miss B also says the Council has not put in place provision for her son during school holidays. Based on what Miss B has said to me it appears she believes school holidays are a separate matter to short breaks. However, that is not the case. Short breaks are intended to cover both term time activities and holiday periods. So, when the Council awards an amount of hours to a child it awards those hours for the entire year including term time and holidays. Miss B’s 308 hours are therefore intended to cover both term time activities and holiday periods. I am satisfied the Council has explained that to Miss B on several occasions.
50. I am also satisfied Miss B has had sufficient hours available to her to book short breaks during the holiday periods. As I have also said, the Council has explained because Miss B has hours accumulated she can use those during holiday periods. I am also satisfied the Council has explained to Miss B if she then runs out of hours it will be able to take the matter back to the short breaks panel to consider whether Miss B’s son needs more hours. As I have found no evidence of fault in how the Council put into place the 308 hours now allocated to Miss B’s son, setting aside the issue of delay putting that into place, I have no grounds to criticise it.
51. Miss B says the Council has not carried out a social care assessment to establish whether she needs support in the home to enable her to carry out her daily chores while providing support to her son. Miss B says because the Council did not put in place social care support her son has ended up on the dynamic register with the NHS. Miss B says her son would not have required that had the Council properly assessed his care needs.
52. Having considered the documentary evidence I am satisfied the Council made a referral to the NHS for a health assessment at the same time it carried out the child and family assessment. I am therefore satisfied the two processes were completed in tandem and the NHS process was not completed as a result of the Council not completing its own process. I am also satisfied the Council has put in place 308 hours short breaks provision partly to reflect Miss B’s need to have a respite from her caring role to enable her to carry out other activities in the home. In addition, I am satisfied the Council completed a child in need plan for Miss B’s son to reflect its assessment of his needs. I therefore have no grounds to criticise the Council here.
53. I am aware Miss B has referred to the need to have help bathing her son. Miss B appears to believe the Council failed to consider that because it has not carried out a social care assessment. However, the documentary evidence shows the occupational therapist did not recommend the need for an additional person to help bathe Miss B’s son. Rather, the recognition at that point was that Miss B would be moving out of her property and a new property could potentially be adapted to provide adequate bathing facilities. Those could not be provided at the property Miss B was living in at the time as she was due to be evicted. I am satisfied the Council has properly considered Miss B son’s needs when awarding 308 hours per year.
54. Miss B says the Council failed to consider providing alternative school transport when she reported difficulties transporting her son to school. The evidence I have seen satisfies me Miss B has been reporting issues with the safety of her son in the car when travelling to school since October 2021. I am also satisfied this is an issue raised by the senior behaviour psychologist in December 2021. To an extent there is evidence the Council acted on those concerns by seeking to identify alternative car seats for Miss B. I am also satisfied the Council made a referral to occupational therapy for a helmet for Miss B’s son in January 2022. However, there is also evidence the various attempts to identify car seats which were suitable for Miss B’s son failed and the Council knew during that period Miss B continued to transport her son to school in conditions which were potentially unsafe.
55. In those circumstances I would have expected the Council to consider whether an alternative form of transport or providing a PA for Miss B to accompany her was appropriate. I have seen no evidence the Council did that. That is fault. Given the difficulties with Miss B’s son which were confirmed by the senior behaviour psychologist I consider it likely, on the balance of probability, if the Council had properly considered the difficulties identifying a suitable car seat for Miss B’s son it would have sought to identify alternative provision. I cannot speculate though about what that may have involved. Given I understand Miss B’s son remains without a suitable car seat as the most recent car seat has also now failed I recommend the Council meet with Miss B to discuss the options for transport going forward. I also recommend the Council pay Miss B an additional £500 to reflect her uncertainty and the impact on her of having to continue to transport her son to school in potentially unsafe circumstances.
56. The Council accepts it delayed implementing some of the recommendations following the stage two complaint. The Council says three of those recommendations should have been considered at the child in need meeting in July 2022. Instead, those matters were not considered until the child in need meeting in September 2022. Delay putting in place the recommendations following stage two is fault. The Council has apologised and offered £100 to reflect Miss B’s time and trouble pursuing the complaint. I consider that a satisfactory remedy for this part of the complaint.
57. Miss B says the Council delayed responding to her stage three complaint. I am unable to reach a safe conclusion about whether the stage three complaint response was delayed. That is because the stage three complaint Miss B submitted is not dated. I am therefore not able to establish the date on which that was submitted to the Council.

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Agreed action

58. Within one month of my decision the Council should:
• apologise to Miss B;
• pay Miss B a total of £1,450;
• arrange a meeting with Miss B to discuss the transport options available for her son; and
• send a memo to officers sitting on short breaks panels to remind them of the need to record their reasoning when awarding short breaks hours, particularly when it awards an amount of hours that is different to the social worker’s recommendation.
59. As part of the learning from this complaint the Council has:
• introduced a new process for carrying out parent carer assessments for parents and carers of children under 18 years of age, including development of a separate form;
• begun updating its direct payments guidance around what the budget can be used for which will then be circulated to all direct payment recipients.

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Final decision

60. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman