Summary: Ms X complained that the Council failed to properly assess her family’s need for support and refused her request for a personal budget based on incorrect information about their circumstances. We found no fault in how the Council assessed the family’s needs and decided they were not eligible for support.

The complaint

1. Ms X complains that the Council failed to properly assess the family’s need for support and refused her request for a personal budget based on incorrect information about the family’s circumstances. Ms X says she is struggling to pay a carer to help her meet her son’s needs and the situation is affecting her mental health.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
3. 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

4. I have considered all the information provided by Ms X, made enquiries of the Council and considered its comments and the documents it provided.
5. Ms 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

Legal and administrative background

6. Section 17 of the Children Act 1989 requires councils to safeguard and promote the welfare of ‘children in need’ in their area.
7. A child is in need if:
• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.
8. 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.
9. 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.

Assessment of need

10. The expectation of ‘Working Together’ is that an assessment which identifies significant needs will generally lead to the provision of services, but it 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.
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. 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’ (Children Act 1989, section 17ZD/E), or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.

Direct Payments

14. Parents/carers of disabled children can ask for a direct payment (DP) to meet the needs of the child. The council must carry out an assessment and DPs must be sufficient to meet the assessed needs. DPs must be used by the parent/carer to meet the child’s needs. DPs do not affect any benefit entitlement.

Local Offer

15. A Local Offer gives children and young people with special educational needs or disabilities, and their families, information about what support services a council expects to be available in its local area. Every council is responsible for writing a Local Offer and making sure it is available for everyone to see.

Education, Health and Care plan.

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

Key facts

17. Ms X’s child, C, has health conditions and special educational needs. He has an education, health and care plan for social, communication and emotional needs.
18. Ms X works part-time and has a live-in carer, Mr Y, to help care for C. She requested a personal budget from the Council to help pay for the carer.
19. A social worker visited Ms X’s home on two occasions to complete a Child and Family assessment. The assessment considered C’s health and stated he needed 24-hour care. It also considered C’s educational needs and the fact that he was missing out on education whilst undergoing treatment.
20. The assessment also considered family relationships and set out that the family home consisted of two children and three adults: Ms X, her former husband, Mr X, and Mr Y. It noted Mr X could not work because of his own disability. The assessment found the three adults were able to meet both children’s needs.
21. The assessment concluded that C did not meet the eligibility criteria for support services and there was no role for the Children with Disability (CWD) team because his needs were mainly health focused and could be met with lower tier services. The assessment also concluded the adults in the home could provide care for C and respite for one another. The social worker recommended the family access a Team Around the Family (TAF) meeting to include C’s speech and language therapist and nurses to support his transition back into school or access to education while he was at home. She also recommended the family explore well-being and support services and register for Short Breaks.
22. The Council wrote to Ms X explaining the outcome of the assessment. It said the CWD team recognised there was a need within the family but did not feel there was a role for social care because alternative services were able to meet their needs. It explained a TAF meeting could provide the family with extra support. It also explained C’s school, speech and language therapist and the hospital could support the family with education, reintegration into socialising, transport and meals. It recommended that, because of C’s current health needs, accessing education at home should be discussed with the school.
23. Ms X was unhappy with the assessment and asked the Council to reconsider its decision. She said she was concerned that she would not be able to continue to pay Mr Y. She said Mr X had a disability that prevented him from caring for C whose emotional and physical needs were met only by Mr Y. She explained C would not be able to return to school for some time and so needed all day care at home and she also had another child to care for.
24. The Council responded saying it had reviewed the assessment and had not found it to be inaccurate. It said the recommendations had been determined from a detailed evaluation of C’s overall family circumstances and what could be considered reasonable by factoring in the adults present in his life. It explained the needs identified by the assessment could be supported through intervention at an earlier stage by a TAF plan.
25. Ms X remained unhappy and complained to us.

Analysis

26. Ms X says C’s father is not actively involved in his care and his disability was not included in the assessment. She says the Council’s decision not to provide a personal budget for a carer is unfair because C needs 24-hour care.
27. In response to my enquiries, the Council said Mr X’s diagnosis was discussed during the assessment which sought to determine how he managed his own health conditions alongside his parent-carer responsibilities for C. The assessment found Mr X would be able to help care for C despite his personal health circumstances. The assessment noted Mr X had been living away from the family home but had returned a few months previously. It concluded his health conditions did not appear to prevent him spending time with C and there were opportunities for him to play a significant and important role in looking after him. The assessment considered that, although Mr X may have periods where he was more likely to focus on his own health, continued management of his symptoms should not prevent him taking a key and influential part in C’s parenting which would provide a break for Mr Y who continued to act as C’s main carer.
28. The Council’s policy says it will assess any child in its area who may be in need in line with its statutory obligations. It says the needs of parents, siblings and other household members will be addressed as part of the child and family assessment. The Council will take account of the results of the assessment when deciding whether to provide services to the disabled child.
29. The policy explains that meeting the child’s needs does not automatically require the provision of funded support. The Council will meet the needs of children with disabilities within the framework of its Local Offer and funded support will only be provided where there is no other appropriate way to meet the identified need.
30. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached.
31. I find no fault in how the Council completed its assessment of C’s needs. It appropriately gathered relevant background information from C’s school and paediatrician and visited C and his family at home to gather their views. The assessment referred to Mr X’s disability and the social worker’s discussions with him about his parenting of C. It concluded C did not meet the eligibility criteria for support because his needs could be met through other services.
32. In the absence of fault in how the Council assessed C’s needs, there are no grounds to criticise its decision.

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Final decision

33. I do not uphold Ms X’s complaint.
34. I have completed my investigation on the basis that I am satisfied with the Council’s actions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman