Summary: Mr X complained the Council has failed to provide agreed overnight care away from home for his daughter Miss Y over many years. The failure to provide away from home respite has had significant physical and emotional consequences for Miss Y and the family. The Council’s failure to provide the agreed away from home respite care 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 Mr X complained the Council has failed to provide agreed overnight care away from home for his daughter Miss Y for 13 years, despite providing regular short breaks to her peers at her special school.
2. The failure to provide away from home respite has had significant physical and emotional consequences for Miss Y and the family.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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

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

6. 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.
7. 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.
8. 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.

9. 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

10. 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.
11. 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

12. Miss Y has complex needs and is fully dependent on her family/carers to meet all of her needs. The Council has provided a range of services to assist Mr and Mrs X in caring for Miss Y since she was very young.
13. A core assessment in April 2010 noted that caring for Miss Y was taking its toll on Mr and Mrs X both physically and mentally. At that time Miss Y received support for three hours of evening care twice a week in term time and three hours of care four times a week during the holidays. She also received Direct Payments for seven hours support per week. In addition Miss Y had the opportunity to access a hospice, provided by a charity, 14 nights a year. This was often offered during the week and meant Miss Y would miss school. Mr X would stay with Miss Y and the hospice and they preferred to only take her in the school holidays.
14. The assessment recommended a short break service such as a family link placement. It noted Mrs X would only like this for day time as she did not want Miss Y to be away from the family at night. Mr X disputes that they said they would only like care for the daytime. The Council was unable to identify a suitable match and Miss Y was removed from the family link waiting list.
15. In the following years Mr and Mrs X repeatedly raised concerns that they were struggling to cope due to sleep deprivation. Mr X took on the role as Miss Y’s main carer and was also a carer for Mrs X. The Council again attempted to find a family link or share the care placement, but this was not possible.
16. Mr X says they there first told about residential facilities that could provide away from home respite in 2014. They identified Centre 1 as being suitable as one of Miss Y’s contemporaries at school attended there. He says that as Centre 1 was in a neighbouring area the Council directed them towards Centre 2. There is no record of any referral or communication with Centre 2 at this stage.
17. The Council commissioned the provision of a waking night carer two nights a week but the records show Mr and Mrs X chose not to use this. They state Miss Y had made it clear she did not want carers during the night. Miss Y would not sleep without either Mr X or Mrs X in the room with her so Mr X slept in Miss Y’s room and cared for her during the night.
18. In October 2017 the Council made a referral to Centre 2. Although Centre 2 offered Miss Y a place, they had no weekend availability until 2018. The records show the Council agreed to 72 overnight stays at Centre 2 per year and that Centre 2 would need to train staff to support Miss Y’s complex medical needs. There are no records of any action taken to progress this placement or to train staff.
19. In the summer of 2018 the Council agreed to increase Miss Y’s care package to a total of 44 hours of care per week term time and a total of 66 hours per week in the holidays. And two overnight stays per month all year round. This increase was not actioned as the care provider could not provide appropriate staff.
20. In June 2019 the Council made a further search for away from home care for Miss Y. At Mr and Mrs X’s request the Council contacted Centre 1 to enquire about overnight short breaks. The manager at Centre 1 responded that its provision is only commissioned by another local authority and that the facility was currently full.
21. Mr and Mrs X again agreed to respite at Centre 2. As Centre 2 was unable to meet Miss Y’s overnight medical needs it was suggested that waking night staff accompany Miss Y to overnight stays at Centre 2. Miss Y attended ‘tea visits’ in January and February 2020 with further visits planned for March and April 2020. These did not take place due to COVID 19 restrictions.
22. Further tea visits were arranged for June and July 2021 when restrictions had been lifted. And in July 2021 Centre 2 sent Mr and Mrs X a programme for four overnight visits in August 2021. Although the tea visits took place, the overnight visits did not. Centre 2 was concerned its staff would be unable to look after Miss Y during the day, after the waking night staff had left.
23. Centre 2 subsequently confirmed they were unable to offer Miss Y a place unless a carer supported her throughout her entire stay. Although the Council agreed to this, it was not possible to arrange any respite at Centre 2 before Miss Y turned 18 in the spring of 2022.
24. In September 2021 Mr X made a formal complaint about the failure to provide ‘away from home’ respite care for Miss Y. Mr X acknowledged Miss Y had in home support from carers but asserted this was very different from ‘away from home’ respite, both for Miss Y and the family. He noted there was no room in their home where Miss Y’s screaming could not be heard. And that with a child who is very demanding, very loud and very fragile there is an enduring stress on the parents and sibling, even when carers are providing support in the home.
25. Away from home care would have provided Miss Y with a variety of experience and was essential for acclimatising her to life in a similar facility when she was older. Miss Y would soon be an adult and faced an abrupt transition into such care without any experience.
26. Mr X noted he had been requesting Miss X spend a night away from home for the last 12 years and that if the matter were drawn out further Miss X would be too old to go to Centre 2 and the Council would have side stepped its obligations towards her care. He asserted Miss Y had been penalised for being more disabled than many of her disabled contemporaries at the special school she attended.
27. The Council’s response set out the attempts it had made to find share the care and residential breaks for Miss Y and the difficulties it faced due to a shortage of foster carers. It also noted that Centre 2 were limited in the number of young people they could offer care to and that they had the right to decline a placement of any young person.
28. The Council apologised for the high turnover of staff which would have led to short term confusion and delays in decision making. But it was satisfied these delays were not the reason for the lack of overnight provision. This was due to factors outside the Council’s control.
29. As Mr X was not satisfied by the Council’s response he asked for his complaint to be considered further. The Stage 2 investigation identified the following heads of complaint:
1. The Council has failed to provide Miss Y with overnight away from home care. Mr X believes this is a failure on the Council’s part to meet its duty.
2. Mr X would like to have the factors that led the Council to take 12 years (so far) to provide this overnight away from home care.
3. Mr X would like the Council to overcome whatever hurdles are preventing Miss Y being looked after by Centre 2 staff during the day after carers have spent the night with her.
30. It noted that only complaint number 1 lends itself to an adjudication.
31. The investigating officer accepted it was accurate to say the Council had failed to find Miss Y an overnight away from home placement for 12 years. They then went on to consider whether this was a failure on the part of the Council to meet its duties. Due to a shortfall in recorded material the investigating officer only considered this element of complaint since January 2018.
32. The officer concluded the Council had delivered its moral duty as it had:
• Made funding available to commission a residential placement
• Made funding available to commission additional staff
• Sought to commission a placement outside its area (Centre 1)
• Worked co-operatively with a partner agency to deliver services, and
• It was reviewing the ‘short break’ provision.
33. They partially upheld this head of complaint noting that Miss Y’s case records included an entry from June 2017 which stated:

“from the review of the file I have determined that [Miss Y’s] needs have not been fully considered by social care since 2015.”

34. In relation to complaint 2, the investigating officer considered the factors identified in regard to why Miss Y had not had overnight away from home care were simple. There are not the required resources. This is an issue for the Council and also nationally. As Miss Y is now 18, Centre 2 is no longer available to her.
35. The investigating officer recommended the Council apologise for the failings in complaint 1 and review its short break provision and take positive measures to address any shortfalls.
36. The Council accepted the stage two findings and recommendations, but Mr X was not satisfied, and his complaint progressed to the stage three panel. Mr X did not consider the stage two investigation went far enough. He wanted the Council to commit to making changes such that any disabled child who is in need of away-from-home respite can receive it. And that being in even more need of such respite should not prohibit the provision of it.
37. Mr X told the panel that many of Miss Y’s peers were given respite at Centre 2 and were absent from their homes from Friday morning until Monday evening twice a month. These young people had similar levels of disability to Miss Y and had received this service year after year.
38. The panel considered the response to complaint 1 had not addressed the fundamental issue behind it. Namely that the family had been assessed as needing respite care away from the home for the last 13 years which the Council had been unable to provide. This was an unacceptable situation for Miss Y and her family. However the panel disagreed with Mr X’s view that that Council could have done more to facilitate a positive outcome. It determined it was unable to find the Council had not fulfilled its duty to Miss Y and her family and agreed complaint 1 was partially upheld.
39. As Mr X remains dissatisfied he has asked the Ombudsman to investigate his concerns. Mr X say the Council’s failure to provide away from home respite is continuing to have an ongoing detrimental impact on Miss Y. Miss Y is now leaving school and has been offered a place at a residential college. However she has not been offered the seven night residential placement offered to other students. Instead it will be a day placement for the first two terms, with one night a week residential in the third and fourth term, increasing to two nights a week in the fifth and sixth terms. Mr X says the Council considers the college’s offer appropriate as Miss Y has not spent any time away from the family before. Which he asserts it is a direct result of the Council’s failure to provide away from home respite.
40. In response to my enquiries the Council states says that in addition to attempts to use in-house or local provision, it also considered whether any out of authority provision or Independent Fostering Agencies could find a suitable provider. It was unable to identify either a short break fostering arrangement or a short break residential placement.
41. The Council says a draft Children’s Commissioning plan is being prepared. Within this plan the Council will review its short break provision to ensure all children receive the support they need. The Council says this review will take place in the autumn and will include Education, Health, Social Care, and representatives from the parent carer forum, including the voice of children and young people.
42. The Council has also confirmed that the health service is now fully responsible for Miss Y’s package of support. As such the Council no longer has any involvement or influence in what support is provided and is unable to secure respite for Miss Y.

Analysis

43. It is clear from the documentation that there have been failings in the service the Council has provided to Miss Y and her family. The Council accepts Miss Y has been assessed as needing respite care away from the home for the last 13 years and acknowledges it has not provided this support. These failings in service amount to fault.
44. 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. The Council has not done so here and that is fault.
45. It is also a concern that there appear to have been periods of delay when attempts to identify away from the home care have ceased or drifted. Centre 2 was raised as a possible placement in 2014, but the Council did not make a referral until 2017. This was then not progressed and there is no evidence any alternatives were considered. There were then further periods of inactivity in 2018 and 2019 where there is no evidence the Council was actively seeking away from home respite for Miss Y.
46. The lack of support and respite care has had a significant impact on Miss Y and her 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 the failings have caused Miss Y and her family.
47. It can be difficult to conduct a fair and accurate investigation into matters that spanning many years. Even where there is sufficient evidence to reach a sound judgement it can be more difficult to achieve a meaningful remedy given the length of time that has passed and the difficulty in establishing causality over longer time periods.
48. In this instance I consider a symbolic financial remedy, in recognition of the impact the failings have had on Miss Y and her family, would be appropriate. The Council was aware that Mr and Mrs X were struggling to cope and that significant sleep deprivation was affecting their health and wellbeing. It was also aware that Miss Y was very dependent on her parents and was not being supported to develop independence from her family. Miss Y risked social isolation and missed out on opportunities and experiences to engage outside the family due to a lack of away from the home respite.

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Agreed action

49. The Council has agreed to:
• Provide a further apology to Mr and Mrs X and Miss Y for the fault identified, taking account of our guidance on making an effective apology ;
• Make a payment of £1,500 to Mr X to recognise the distress and harm caused as a result of the lack of away from home respite care;
• Make a payment of £4,500 to be used for the benefit of Miss Y in recognition of the distress and missed opportunity caused by the lack of away from home respite care;
50. 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.
51. In addition the Council has agreed to complete its review of its short break provision without delay to ensure it can provide appropriate respite provision for children and young people. This could include consideration of commissioning a new provider and working with neighbouring authorities.

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Final decision

52. The Council’s failure to provide the agreed away from home respite care 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