Summary: Mrs X said the Council failed to properly assess and fund short breaks for her and her child, Child Y. The Council was at fault for initially not explaining to Mrs X her short break payment award level, it will apologise to her, for the uncertainty caused. The Council has since written to Mrs X to explain its reasons and has also put in place appropriate changes to its process.

The complaint

1. Mrs X complained the Council failed to properly assess and fund short breaks for her and her child, Child Y. She said the short break awarded was not enough and did not meet Child Y’s or her own needs. Mrs X also said the Council failed to give reasons for its decision. As a result Mrs X said this caused her avoidable time and trouble pursuing the matter, uncertainty and distress. Mrs X would like a fresh appeal hearing and a full rationale for the criteria used to make its decision.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
5. 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.
6. 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

7. I considered:
• the information Mrs X provided and spoke to her about the complaint;
• the information the Council provided and its response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Disabled child

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. The expectation of ‘Working Together’ 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.
14. 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.
15. The Children Act 1989 (Schedule 2 paragraph 96)(1)(c)) and Breaks for Carers of Disabled Children Regulations 2011 requires 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.

Special educational needs

16. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.

Activities Unlimited

17. Activities Unlimited is a short break service for disabled children and young people in Suffolk, which is part of the Council. Families who have children with additional needs can visit its website, register their child to become a member and then book activities and short breaks with funding provided by the Council.

What happened

18. Child Y lives with their family. Child Y has Autism, severe pathological demand avoidance (PDA) and sensory difficulties.
19. In mid-November 2022, Child Y’s mother, Mrs X applied to the Council for a short break personal budget. The application form included questions about Child Y’s needs, Mrs Y’s carer responsibilities and support services involved.
20. The form said Child Y had the following needs: sensory, mobility, learning disability, self-care, speech and language and communication and social emotional mental health needs. Child Y received disability living allowance (DLA) at the middle rate for care and at the low rate for mobility. The family were awaiting a decision on whether Child Y was eligible for a higher rate of DLA. Mrs X also sent the Council Child Y’s EHC Plan and EHC needs assessment, Child Y’s diagnosis and psychotherapist report.
21. The Council graded the short breaks award indicators given on the application form. The Council said because of the volume of applications it only considered evidence of disability related benefits in payment at the first application stage. Depending on severity of need the Council generated an overall score. The score determined the personal budget awarded and were split into six levels.
22. The Council also provided Mrs X the Activities Unlimited guide to short break personal budgets and a published table which showed the typical indicators the council considered against different levels of personal budget. The Table displayed a header which said the information was intended as a guide only, to help parents, carers and practitioners understand the indicators the Council typically saw at each level.
23. In late April 2023 the Council wrote to Mrs X with the Activities Unlimited budget. Based on the information provided in Mrs X’s application. It awarded Level 2, £400 to be used for activities and short breaks between April 2023 and March 2024. The letter asked Mrs X to complete the agreement form or appeal within 28 days.
24. The same day Mrs X made a stage 1 complaint to the Council. She said she was unhappy with the short break payment awarded and did not understand the award criteria. Mrs X explained only a few family members, close friend and two members of staff from Child Y’s alternative provision could look after Child Y because of Child Y’s complex needs. Mrs X said Child Y would need fully qualified staff on a one to one basis who knew Child Y well. Mrs X said because of Child Y’s needs most activities run by Activities Unlimited were unsuitable and the payment was not sufficient for her to arrange activities of her choice.
25. In addition, Mrs X appealed the short break payment award and provided supporting information including that Child Y was now awarded higher-level DLA. Mrs X said:
• she did not think the Level 2 offer met Child Y’s needs;
• it had not fully considered Child Y’s EHC Plan, application form and supporting documents;
• Child Y was vulnerable with complex needs but had been considered as low need; and
• Child Y had a part-time education other than at school (EOTAS) package with continuing therapy and had complex behaviour needing one to one support by qualified staff, that knew Child Y well.
26. In mid-May 2023 the Council wrote to Mrs X with the appeal panel decision. It said the appeal panel carefully considered the appeal form and the additional information provided but the appeal panel did not think there was enough evidence to change the outcome. It included the appeal panel rationale which said ‘Panel have reviewed the additional information provided as part of the application, but still feel that a Level 2 offer is appropriate’.
27. Mrs X emailed the Council the same day to complain about the appeal response. She questioned whether the appeal had taken place and asked for the panel minutes. The Council did not provide Mrs X with the appeal minutes.
28. In late May 2023 the Council responded to Mrs X stage 1 complaint and said:
• the panel considered Mrs X’s initial application, appeal form and additional evidence provided. The panel felt although the needs were significant they were similar with others in receipt of Level 2 and did not increase the score to Level 3, £600;
• the Activities Unlimited guide to short break personal budgets and the published table showed typical indicators against the different personal budget levels and was intended as a guide only. It apologised for any confusion caused.
• it would view whether changes were needed to ensure the user guide were clear and accurate; and
• in recognition of Mrs X’s distress it would increase her offer to Level 3 award for 2023/24.
29. In mid-June 2023 Mrs X escalated her complaint to stage 2 of the Council complaints process. The same day the Council responded and said it would not look at the complaint at stage 2. Mrs X remained unhappy and complained to us.

Enquiries

30. In response to my enquiries the Council said:
• it does not take appeal panel minutes and this was not part of its process;
• Mrs X updated her short break personal budget application and sent evidence of her personal independence payment (PIP) and an appeal panel considered this new information. In early October 2023 the Council wrote to Mrs X and offered her Level 3 personal budget for the remainder of the financial year for short breaks between April 2023 and March 2024. The Council has now paid Mrs X the additional £200 payment;
• The Council said the panel rationale was: ‘Thank you for submitting your evidence regarding your PIP. This additional information has increased the scoring to the higher end of our Level 2 offer. Our Panel has subsequently reviewed your application and increased your offer to a Level 3 budget’; and
• it would start to review the short break personal budget criteria guide in early December 2023;
• in early December 2023 the Council strengthened its process by clearly explaining the reasons for the short break award payment scores; and
• in mid-December 2023 the Council spoke to and wrote to Mrs X with an explanation of the scoring for her short break payment award.

My findings

31. We are not an appeal body. If there was no fault in the decision-making process, we cannot comment on the decision reached.
32. In November 2022, when Mrs X applied for a short break personal budget the Council followed the correct process. It considered her application form answers in relation to Child Y’s needs but could not consider her higher rate DLA because she was awaiting a decision at that point. The Council generated an overall score which came out at Level 2 and the Council issued its decision to Mrs X.
33. When Mrs X appealed the short break payment award the Council undertook an appeal which was the correct process. It considered Mrs X’s new higher-level DLA but still gave an over all score of Level 2. The Council did not give a clear explanation of its reasons for deciding Level 2 was appropriate in its appeal decision letter of its short break payment award. This was fault and caused Mrs X uncertainty about how her award was considered.
34. The Council has since undertaken a new appeal of Mrs X’s short break payment award based on Mrs X’s PIP information. In October 2023 the appeal panel decided Level 2 was appropriate but said it would offer a Level 3 payment. It was appropriate for the Council to consider whether to depart from its usual process and make a higher payment. However, at the time it still did not properly explain its reasons for deciding Child Y was only eligible for Level 2, which was further fault.
35. In mid-December 2023 the Council explained to Mrs X the reasons behind her short break payment award. I am satisfied the Council has also made appropriate changes to its process to ensure it gives clear explanations and reasons for short break award payments in future.
36. The Council provided Mrs X with information about short break Personal Budgets, including typical indicators. It was clear this was a guide only. Although Mrs X considered the guidance was unclear, this does not amount to fault. In any case, the Council has apologised for any confusion caused to Mrs X and has agreed to review whether it can make the user guide clearer and more accurate in the future. These steps were appropriate.

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Agreed action

37. Within one month of the final decision the Council will apologise to Mrs X for the uncertainty caused by not giving a clear explanation for the short break payment award decisions in May and October 2023.
38. The Council has taken appropriate action to explain its reasons in this case and to ensure it explains its reasons in future. Therefore, no further recommendations are needed.

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Final decision

39. I have completed my investigation finding fault causing personal injustice. The Council has agreed to take action to remedy the injustice caused and has already made changes to its processes to prevent reoccurrence of the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman