Summary: Miss X complained the Council did not properly consider her requests for an assessment from its disabled children’s service for both her children. The Council did not properly assess Miss X’s daughter, delayed in its assessments for both children, and did not properly investigate Miss X’s concerns about racist language during an assessment. This caused delays in Miss X’s son receiving short breaks, and uncertainty about whether her daughter was correctly assessed as not being eligible for short breaks. It also caused the family avoidable distress and time and trouble. The Council agreed to apologise, carry out an independent assessment for Miss X’s daughter, and pay a financial remedy. It will also issue reminders to its staff.

The complaint

1. Miss X complains the Council did not properly consider her requests for an assessment from its disabled children’s service for both her children in 2022 and 2023. She says:
• the Council did not properly apply its assessment eligibility criteria and she had to repeatedly challenge the Council to get assessments for both children. A Council staff member was patronising and hostile towards her during this;
• during the assessment of her son D, a different staff member discriminated against her by using racist and inappropriate language, and the Council did not properly investigate this when she reported it;
• the Council did not properly assess her daughter P and wrongly refused to provide short breaks for her; and
• the Council did not properly consider the family’s circumstances including the impact of the children’s needs on their parents.
2. Because of this Miss X says she felt isolated, judged, and dismissed. She also says she had no breaks from caring for her daughter P because of the assessment outcome. She wants the Council to:
• compensate her for the distress caused;
• hold relevant staff accountable for their treatment of her, and arrange staff training on mental health issues, racism, and unconscious bias;
• arrange a fresh short breaks assessment for her daughter P, by a social worker from an ethnic minority group, experienced in dealing with families affected by mental health issues, autism, and cultural differences; and
• ensure she has no further contact with the staff involved previously.

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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 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)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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)
6. When we find fault, we can recommend remedies for significant personal injustice, or to prevent future injustice, caused by that fault. We look at organisational fault, not individual professional competence. Decisions about individual’s fitness to practice or work are for the organisations concerned, and for professional regulators, not the Ombudsman. (Local Government Act 1974, s26(1) and s26A(1) as amended).
7. 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

8. I considered:
• information provided by Miss X and discussed the complaint with her;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
9. Miss X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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

Legislation and statutory guidance

The Council’s duties to children in need

11. 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.
12. 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. Services which can be provided under section 2 of 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.
13. The Courts have found (R (L and P) v Warwickshire CC, 2015) that not every disabled child will necessarily require a full assessment by a social worker. Those with lower-level needs may be assessed via “Early Help”. Councils should be able to demonstrate how they have determined the level of need.
14. The statutory guidance on child safeguarding, ‘Working together to safeguard children 2018’, sets out the expectation 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.

Education, Health, and Care (EHC) Plans

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

Background

16. Miss X has two children, a son D, and a daughter P. Both D and P are disabled. In 2022 and 2023, Miss X had repeated contact with the Council’s Disabled Children’s Service, to request it provided community based short breaks for both D and P.

My findings

The role of the Ombudsman

17. The Ombudsman is not an appeal body. It is not our role to decide whether a child should receive support from social care services, or what level of support they should receive. We investigate the processes a council followed, to assess whether it made its decisions properly. Where a council has followed the law and its own policies, and considered all the information it should have, we cannot question or criticise the Council’s decision simply because a complainant disagrees with it.

The Council’s policy about levels of need for disabled children

18. The Council’s ‘Levels of Need Guidance’ sets out guidance for its practitioners to help them identify levels of need and therefore the appropriate response when a child needs help. This sets out “indicators of need” for four levels of support:
• Universal services. Support which is available to all children and families in the Council’s area, such as support from their school or GP.
• Early Help services. Support for families with a disabled child who need extra support from social care services.
• Early Help – Targeted services. Support for families with a disabled child who have accessed Early Help and need more, targeted support. This may include support from the Council’s Disabled Children’s Service, such as community based short breaks.
• Specialist/ statutory services. The needs of the child or family are so great that statutory and/or more specialist intervention is needed from the Council’s social work teams to keep them safe or promote their development.

The Council’s assessment process for disabled children

19. The Council’s policies for children’s social care assessments set out the following process.
1. Initial contact. When the Council receives contact about a child, who may be a child in need, with a request for a service, it must decide the level of response needed within 24 hours. If it decides it may need to carry out an assessment or provide services for a child in need, it will progress the case to “referral” stage.
2. Referral. Once accepted as a referral, the Council must screen the referral against its ‘Levels of Need Guidance’ (described in the section above). It must decide next steps within one working day. This could be that it should complete a child in need assessment under section 17 of the Children Act 1989, or that it should signpost to certain universal or early help services.
3. Assessment. A child in need assessment should take no longer than 45 working days from the point of referral. It will involve drawing together and analysing available information from a range of sources, including the child and family, and any relevant professionals in contact with the family.

Assessment for Miss X’s son, D

20. Miss X first asked the Council’s Disabled Childrens’ Service (DCS) to assess her son D’s needs as a disabled child in mid-2022. She said she wanted the Council to provide D with community based short breaks. When Miss X applied for an assessment, D was attending a mainstream school. However, three weeks later, another Council team issued a new EHC Plan for D, specifying he should attend a special school. The DCS decided, based on this new information about D’s EHC Plan, that it should carry out a short breaks assessment. It told Miss X this decision six weeks after she made the original application, and three weeks after she provided a copy of the new EHC Plan.
21. I am satisfied the Council properly considered Miss X’s request for assessment. I also found no fault with how the Council communicated with Miss X about its decision to assess D.
22. Eleven weeks after it decided to carry out a short breaks assessment, the Council completed its assessment and told Miss X it had decided to provide short breaks for D. It made its assessment decision 85 working days after it received the referral, so took 40 working days (8 weeks) longer than it should have done. This delay was fault, which delayed the family in receiving short breaks for D. The Council should provide a financial remedy for the distress this caused.
23. When Miss X complained to the Council, eight months after D’s short breaks assessment, she said the assessor used racist and inappropriate language during the assessment. In response to Miss X’s complaint, and our enquiries, the Council did not dispute there was a discussion about race during the assessment. However, it said the staff member’s recollection of the conversation, and its tone, differed from Miss X’s recollection. The Council’s records of the assessment did not include any notes about this part of the conversation between the assessor and Miss X. I cannot make a finding on the balance of probabilities about what was discussed, and whether this was inappropriate, based on the evidence available. However, I have considered how the Council investigated and responded to Miss X’s concerns about this in a later section of this statement – ‘The Equality Act and allegations of racist language’.

Assessment for Miss X’s daughter, P

24. Miss X first asked the Council’s DCS to assess her daughter P’s needs as a disabled child in mid-2022. She said she wanted the Council to provide P with community based short breaks. Three weeks later the Council decided P did not meet the threshold for targeted or specialist support services. It told Miss X it would therefore not carry out a short breaks assessment for P but signposted her to universal and early help services. I found no fault with how the Council made this decision, or how it communicated with Miss X about it. The Council properly considered the information provided by Miss X against the indicators of need set out in its Levels of Need Guidance for disabled children. There is no fault in how it took the decision, and I therefore cannot question whether that decision was right or wrong.
25. Six months later, in early 2023, Miss X again asked the DCS to assess her daughter P’s needs as a disabled child and said she wanted it to provide P with community based short breaks. Miss X provided new evidence with this application, which the Council fully considered. The Council again decided it would not carry out a short breaks assessment and signposted Miss X to universal and early help services. As above, I found no fault with how the Council made this decision, or how it communicated with Miss X about it.
26. A week later, Miss X again asked the Council for a short breaks assessment for P, providing further new evidence. The Council decided based on this later application and evidence, that it should carry out a short breaks assessment. It took ten weeks to complete the assessment, and decided it would not provide short breaks for P. The Council was at fault in how it carried out this assessment because:
• it made its assessment decision 59 working days after it received the referral, so took 14 working days (3 weeks) longer than it should have done. The Council should apologise for the distress this caused; and
• the Council’s records show it pre-judged the outcome of the assessment before it completed it. The Council recorded it considered P would not meet the threshold for targeted services before it visited P in school, and before it carried out the family assessment meeting. This was fault, and there remains uncertainty for the family about how the outcome of the assessment may have been different. The Council should carry out the assessment again, by an independent assessor with no prior involvement in the case.

Consideration of parent carer needs

27. Child in need 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.
28. 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.
29. 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.
30. Both D and P attend school. Miss X does not work and cares for D and P when they are at home. Miss X said the Council did not properly consider the family’s circumstances, including the impact of the children’s needs on their parents.
31. Although I found fault in how the Council carried out P’s assessment, I did not find the Council at fault in how it considered the needs of the parents. The Council’s records showed it considered this, and what support services the parents were already accessing. It decided they were already accessing suitable support and there was no appearance of need for a parent carers assessment. There was also no record Miss X asked for a parent carers assessment.

Complaint handling and the statutory children’s complaints procedure

32. Miss X complained to the Council in July 2023. It responded to the complaint via its corporate complaints procedure.
33. The Children Act 1989 Representations Procedure (England) Regulations 2006 set out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail. We also published practitioner guidance on the procedures, setting out our expectations.
34. Miss X was eligible to complain under the statutory complaints procedure for children’s social care services. Her complaint was about the Council’s actions carried out under section 17 of the Children Act 1989. Therefore, this fell within the scope of the statutory procedure, as set out in the law and guidance.
35. Where a complaint falls within the scope of the statutory procedure, the Council must use it. The Council did not consider Miss X’s complaint via the statutory procedure. This was fault. This prevented Miss X from receiving an independent, thorough, and prompt response to her concerns from the Council. Now the Ombudsman has investigated, I do not consider there is any benefit to the Council now carrying out a retrospective investigation via the statutory procedure. However, it should remedy the time and trouble caused to Miss X because it did not follow the correct complaint handling procedure.
36. In response to our enquiries, the Council accepted this was fault and said it has since clarified the issue to relevant staff. Therefore, I have not made any further recommendations for the Council to address this fault, other than to remedy the injustice to Miss X.

The Equality Act and allegations of racist language

37. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport, and the carrying out of public functions.
38. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The ‘protected characteristics’ referred to in the Act are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
39. We cannot find that an organisation has breached the Equality Act, or make a finding of discrimination against an individual. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
40. Miss X describes herself as mixed race and from a minority ethnic group. We decided to use Miss X’s preferred description of herself. Part of Miss X’s complaint was about racist and inappropriate language from the assessor during D’s assessment eight months earlier, as described at paragraph 23. The Council was at fault in how it investigated Miss X’s concerns about this because:
• its response to Miss X’s complaint was vague. It did not clearly explain the steps it had taken to investigate this concern, what it had established, or whether it had identified fault; and
• in response to my enquiries, the Council said it discussed the issue with the relevant staff member during its complaint investigation. However, it provided no documentary evidence of this. Also, the Council’s explanation in response to my enquiries was still not clear enough. I cannot be satisfied the Council properly investigated or addressed this issue.
41. Because the Council did not properly investigate and clearly respond to Miss X’s allegations of racism, I also cannot say it properly considered its duties to her under the Equality Act, as someone who is mixed race and from a minority ethnic group. This was fault.
42. The Council’s failure to properly investigate Miss X’s concerns about this caused her distress. The Council should pay a financial remedy to recognise this distress, and should write to Miss X to properly explain its findings about her allegations of racist language.

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Agreed action

43. Within one month of our final decision the Council will:
1. apologise to Miss X for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation will consider this guidance in making its apology;
2. carry out a new child in need assessment for Miss X’s daughter P to decide if it should provide targeted support services. This will be completed by an independent assessor with no prior involvement with the family, and overseen by an independent manager, also with no prior involvement. If the Council decides it should provide services, and this decision is based on the same information available to it when it carried out the mid-2023 assessment, it will consider whether it should provide a remedy for distress caused by any loss of service;
3. write to Miss X to properly explain how it investigated her allegations of racism, what it found, and any steps it considers it should take to improve its services or address any faults identified; and
4. pay Miss X a total financial remedy of £600, comprising of:
1. £200 to recognise the avoidable distress caused to the family by delays in the assessment process for D, which resulted in a delay to short breaks provision;
2. £300 to recognise the distress caused to Miss X by the Council’s failure to properly investigate and clearly respond to her allegations of racism, and to consider its duties to Miss X under the Equality Act; and
3. £100 to recognise the avoidable time and trouble caused to Miss X in bringing her complaint to the Ombudsman because it did not arrange an independent investigation via the statutory children’s complaints procedure.
44. Within three months of our final decision the Council will:
1. issue reminders to relevant staff carrying out assessments within its Disabled Children’s Service about:
1. the timescales for child in need assessments, as set out in statutory guidance and its own policies; and
2. the importance of not pre-judging the outcome of a child in need assessment before it is complete.
2. issue reminders to staff within its Disabled Children’s Service with responsibility for responding to service complaints, about:
1. the importance of fully investigating and clearly responding to allegations of racism; and
2. the Council’s duties under the Equality Act 2010.
45. The Council will provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation. There was fault by the Council which caused delays in Miss X’s son D receiving short breaks, and uncertainty about whether her daughter P was correctly assessed as not being eligible for short breaks. It also caused the family avoidable distress and time and trouble. The Council agreed to our recommendations to remedy this injustice and issue reminders to its staff.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman