Decision : Upheld
Decision date : 24 Oct 2023
1. The Council has failed to provide the agreed support packages to disabled children and young people in its area.
The Ombudsman’s role and powers
2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)
3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
The Children Act 1989
4. 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 are entitled to an assessment under section 17.
5. 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.
6. 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.
7. 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
8. 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 depends 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.
9. 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.
10. Councils are required to provide a range of short break services for disabled children and their carers. Short breaks provide children and young people the opportunity to take part in activities, develop skills, and form friendships outside the family, while giving their families a chance to rest from caring responsibilities. They can include:
day-time care in their home or elsewhere;
overnight care in their home or elsewhere;
educational or leisure activities outside their homes; and
- services to assist carers in the evenings, at weekends and during the school holidays.
11. We produced this report after examining relevant documents.
12. We gave the Council a confidential draft of this report and invited its comments. The comments received were taken into account before the report was finalised.
13. While investigating another complaint about a failure to provide short breaks for a disabled child away from their home, it came to our attention that other children and young people may also not be receiving their full assessed support and respite.
14. The Council told us it had not received any other complaints about a failure to provide short breaks outside the home. It also initially told us it was very difficult to confirm how many other service users were not receiving their agreed respite. The Council acknowledged there were other young people who had been assessed as requiring short breaks who were not yet receiving respite, or not getting their full allocation. It said there were a number of different reasons for this, including waiting for a space or an identified provider or a match, and that the individuals’ circumstances were different.
15. We considered that the Council’s actions may have caused an injustice to members of the public and decided to investigate further under section 26D of the Local Government Act 1974.
16. The Council has now confirmed its Children with Disabilities team works with 90 children who have agreed packages of funded support under section 17 of the Children Act 1989. Of these, 17 are not receiving the full package as agreed and a further 12 are not receiving any package due to a lack of ability to match a provider with the child/their family’s needs.
17. These packages of support range from a few hours each week with more in school holidays, to several hours two-to-one support each week. Some include weekly or several overnight stays each month at a respite centre, and there is also a child/young person who is assessed as needing a 52 week residential placement.
18. In most cases the Council notes the support is not being provided or only partially provided as it cannot identify a provider or personal assistant, or it is waiting for the respite centre to resolve staffing/space issues. The respite centre the Council commissions is a purpose built setting that opens six days a week and can accommodate seven young people at one time.
19. The Council says it is taking steps to provide the services assessed and to identify what could be put in place in the meantime to support the families not receiving this. It says senior managers are aware of the information on the database, and it will ask managers to monitor the recording of all attempts to secure respite on the child/young person’s records. They will also consider whether plans are working and whether anything needs to be changed.
20. The Council has initiated the Children’s Joint Commissioning Group and 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.
21. Over 30% of the children who have been assessed by the Council’s Children with Disabilities team as needing support are either not receiving their full package of agreed care or are not receiving any of the support they require. This is clearly unacceptable and is indicative of ongoing problems in providing support and respite for children with complex needs.
22. We recognise there are difficulties in identifying providers and personal assistants. And that the organisations and respite centre the Council commissions have staffing and capacity issues. 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 failure to provide the agreed packages of support in full is fault.
23. If the resources currently available to the Council are not sufficient to meet the assessed needs of the children and young people in its area we would expect it to take proactive steps to address this. It is unlikely a seven bedroom respite centre, on its own, would be sufficient to meet the needs of all the children and young people who are assessed as needing respite outside their home. But there is no evidence the Council has taken action to find an alternative or supplementary provider.
24. The Council’s records show three children/young people are waiting for overnight provision at the respite centre with a fourth only recently starting to receive this support. Three other children/young people are also without overnight provision as the Council has been unable to identify a service to meet their needs.
25. It is a similar position with support during the day where the Council repeatedly notes it has not identified a service provider, or new providers are being sought, or that it cannot find a personal assistant.
26. It is unclear from the information the Council has provided how long any of the 29 children and young people have been without some or all of their agreed support. Nor is there any indication as to how or when their full packages will be provided.
27. The failure to provide the agreed support packages in full has the potential to cause significant difficulties and distress to the children/young people and their families who are likely to struggle to cope without it.
28. It should not have taken the initial complaint to us for the Council to recognise the extent of the problem it was facing and take appropriate action to begin to resolve the issues. The original complainant was aware of others also left without appropriate support and part of the outcome they sought was for this to be acknowledged and action taken.
29. The Council’s drafting of a Children’s Commissioning plan which will include a review of its short break provision is to be welcomed.
30. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)
31. In addition to the requirements set out above, the Council has agreed to take the following actions within three months of the date of this report.
The Council should apologise to all the families affected. Apologies should be made to the parent/carer and child/young person affected. Those apologies should not be generic templates. They should acknowledge the individual circumstances of each case; the extent of the lost provision and length of time the required provision has not been in place. In making these apologies the Council should have regard to our guidance Making an effective apology. The letters should also set out the actions the Council is intending to take to address the issues and anticipated timescales for resolution in relation to the specific cases.
We recognise the Council is taking steps to begin to resolve matters and is drafting a commissioning plan and reviewing its short breaks policy. We understand this will take time. But that process should not be allowed to drift. The Council should provide quarterly reports to the relevant committee to ensure democratic oversight of the progress being made. That committee should ensure it holds the Council to account if timescales are missed or actions not completed.
The Council should also publish quarterly updates of progress against the action plan on its website so those affected can monitor and track this.
32. We have completed our investigation into this complaint. There was fault by the Council which has the potential to cause injustice. The Council should take the action identified in paragraph 31 to remedy that injustice.