Summary: Mrs B says the Council wrongly refused to award direct payments for her eldest son for respite and delayed reaching the decision. There was delay reaching the decision and although the Council’s panel awarded direct payments for Mrs B’s eldest son it told her it had not. An apology, payment to Mrs B, putting in place the additional respite for Mrs B’s eldest son and procedural changes are satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council:
• failed to take into account the support her eldest son needs to access activities and her own need for respite when refusing to award direct payments for short breaks; and
• delayed making a decision.
2. Mrs B says the Council’s failures have had a significant impact on her emotional well-being, she has struggled to cope and has had to undergo counselling.

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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. 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 Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Legal and admin

8. Section 25 of the Children and Young Persons Act 2008 requires local authorities to provide short breaks for families with disabled children. As part of that each local authority has to produce a short breaks services statement so families know what services are available, the eligibility criteria and how short breaks are designed to meet the needs of families with disabled children.
9. The Council’s guidance on accessing short breaks says when a referral is received the Council will complete an assessment through the children’s and families disability team where appropriate. If the assessment identifies the need for short break activities and support and/or direct payments the social worker will refer the case to the children’s disability short breaks and continuing care panel (the panel). The panel outcomes are to be made available to parents within 10 working days and if the parent does not agree with the decision they can appeal within 14 working days. The appeal then goes back to the panel.

What happened

10. Mrs B has two children with special educational needs. Mrs B's youngest son received 10 hours short breaks per week in 2022. Mrs B's eldest son did not receive any short break hours. Mrs B asked the Council to put in place short breaks for both children in January 2023. The Council completed a child and family assessment in March 2023 and referred the case to the panel to consider.
11. The panel considered the case in May 2023 and awarded a joint package for the two children. That involved 15 hours per week short breaks to cover both children and 20 hours per week in the holidays to cover both children. A joint package was funded rather than a set number of hours for each child to enable Mrs B to use the hours flexibly.
12. When the Council wrote to Mrs B to confirm the decision from the panel though it told her the hours allocated were only for her youngest son. Mrs B challenged that decision and then complained. The Council continued to tell Mrs B the hours allocated were only for her youngest son.
13. The Council accepts the information it gave Mrs B was inaccurate and it has offered the following remedy:
• apology for the lack of clear information;
• the introduction of separate packages for each child. That means the eldest child will receive five hours direct payments per week and the youngest child will receive 10 hours direct payment per week in term time. Both children will then receive 10 hours per week during holidays;
• to put in place a new direct payment agreement;
• to gradually reduce the hours available to the youngest son from 15 hours to 10 hours over a three month period so there is no sudden change in support;
• return the case to the panel for review after three months, or earlier if circumstances change;
• allocate a social worker to support Mrs B and help ensure her access to other sources of support through the local offer; and
• pay Mrs B £250.
14. The Council has also:
• changed the panel process with all children now presented individually and receiving an individual decision;
• ensured panel decisions are discussed with the team manager and social worker in supervision;
• changed the process so panel decisions are presented to parents face-to-face with a copy of the signed and approved decision record to avoid confusion;
• put in place revised training for team managers and social workers around short breaks;
• introduced a new appeals process with parents able to appeal directly to the panel chair for explanation, discussions or to raise information they believe has not been considered; and
• the members of the disability short breaks and continuing care panel have undertaken recent training sessions.

Analysis

15. Mrs B says the Council wrongly refused to award direct payments for her eldest son for respite. Mrs B says the Council, in reaching that decision, failed to take into account the support her son needs to access activities as well as her own need for respite.
16. Having considered the Council’s response to my enquiry and the documentary records it is clear there has been a significant error here. The Council accepts when its panel considered the case in May 2023 it agreed to award a short break package to cover both children. The package it awarded was 15 hours per week term time for both children with 20 hours per week for both children in the holidays which would allow Mrs B to use the hours flexibly. However, the Council accepts all its communications with Mrs B following the panel meeting wrongly told her the panel had only awarded those hours for her youngest son. I am concerned not only that the Council gave Mrs B incorrect information following the panel in May 2023 but also that it continued to provide her with the same incorrect information when she raised concerns and following her appeal. Failure to give Mrs B the correct information is fault. Failure to identify that error when dealing with the complaint and appeal is also fault.
17. I welcome the Council’s willingness to admit there has been fault in this case. I also welcome the Council’s offer to continue the higher level of support for Mrs B’s youngest son, reducing gradually over a further three months rather than reducing the support that is available to him immediately to reflect what panel had agreed. It is clear though the Council’s error means Mrs B has, in effect, had little if any respite since May 2023. That is because Mrs B has two children with special educational needs but only one of those children received short breaks. This meant while Mrs B’s youngest son was attending short breaks Mrs B had no respite as she still had to look after her eldest son. I am particularly concerned about that given the Council’s assessments made clear the amount of stress Mrs B was under and her need for respite. Alongside that it is also clear there was delay referring the case to panel which increased the impact on Mrs B.
18. Mrs B has also raised concerns about the Council referring her to adult social services for an assessment. Having considered the documentary evidence it is not clear on what basis the Council considered such an assessment necessary. Nor is it an assessment Mrs B is keen to pursue. I therefore recommended the Council discuss with Mrs B whether it is appropriate for her to receive an adult social care assessment before making any such arrangements. The Council has agreed to my recommendation.
19. I do not consider the £250 the Council has offered Mrs B is sufficient to reflect the impact on her. Instead, I recommended the Council pay her £1,000 as well as sending her an apology. That is to reflect the significant stress Mrs B has been under since May 2023 without any short breaks for her eldest son despite the Council’s agreement to provide one, Mrs B’s frustration about being given incorrect information as well as the time and trouble she has had to go to pursuing her complaint. The Council has agreed to my recommendation.
20. I recognise the package agreed for the two children does not reflect the level of support Mrs B feels the children need. Mrs B has specifically raised concerns about a joint assessment not reflecting the individual needs of her children. I note the Council has now changed its procedure to ensure individual assessments are carried out in future and I welcome that. I would not want my investigation to delay further Mrs B receiving respite hours for her eldest son. I therefore recommended at the end of the three month period, and by no later than May 2023, the Council take each individual child’s case back to panel separately to decide what level of support is appropriate going forward. The Council has agreed to my recommendation.
21. I have considered whether there is an appropriate procedural remedy I can recommend in this case. I set out in paragraph 14 the procedural changes the Council has put into place around how referrals to panel are dealt with. I welcome those changes. I also welcome the training sessions the Council has introduced. In light of that I do not make any further recommendation in terms of how panel decisions are communicated as it is clear the new process means the same fault should not arise again. However, I recommended the Council remind officers of the need to avoid delays in the assessment and panel process and to ensure parents are kept up-to-date with what is happening. The Council has agreed to my recommendation.

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Agreed action

22. Within one month of my decision the Council should:
• apologise to Mrs B for the distress, frustration and upset she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs B £1,000;
• allocate a social worker to support Mrs B if she wants one;
• remind officers of the need to ensure child and family assessments and referrals to the panel are made promptly and that parents are kept up-to-date with what is happening.
23. The Council should ensure the hours of support for Mrs B’s youngest son are gradually reduced over a three month period. The Council should also ensure a new direct payments agreement is signed.
24. By no later than May 2023 the Council should refer both children individually to its panel to consider what respite hours should be awarded going forward.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman