Summary: Mrs B complained about the actions of the Council in dealing with her request for an assessment and services for her daughter from the children with disabilities service and the way in which it dealt with her complaint about those matters. We have found fault with the Council. The Council has agreed to apologise to Mrs B, pay her £500, complete a new assessment and improve its procedures for the future.

The complaint

1. Mrs B complained that Lancashire County Council (the Council), in respect of her complaint about social care support for her daughter, D, has:
• delayed excessively in completing a children and families assessment;
• refused to accept D is eligible for services from the children with disabilities (CwD) service and failed to coherently explain why she does not qualify;
• delayed on several occasions in responding properly to her complaint; and
• used the wrong complaints process to consider the complaint.
2. This fault has caused Mrs B significant (and ongoing) distress and inconvenience.

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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. 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. I have considered the complaint and the documents provided by the complainant, and the Council. I have also considered the guidance on the statutory children’s complaints procedure, and the Ombudsman’s guide for practitioners about the statutory complaints procedure published in March 2021. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
6. Under our information sharing agreement, we will share the final decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Statutory complaints procedure

7. The law sets out a three-stage procedure for councils to follow when looking at most complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.
8. The guidance says who can complain and what they can complain about. And includes:
• delay in decision-making or provision of services;
• delivery or non-delivery of services including complaints procedures;
• attitude or behaviour of staff;
• application of eligibility and assessment criteria; and
• assessment, care management and review.

Criteria for allocation of a child or young person to a social worker in the Special educational needs (SEND) Children with Disabilities (CwD) service (2017)

9. This Council policy said:
• Where children have disabilities which are considered to be severe or profound, it is recognised that a specialist service is likely to be required and these children and young people should be referred to the SEND CwD Services.
• Severe is defined for an older child as having a disability (physical or mental) which means they are unable to perform tasks without aids and assistance most of the time.
• The decision around whether a child or young person meets the criteria for allocation to CwD is the responsibility of CwD Managers. In coming to this decision, the Statement of Special Educational Needs or Education, Health and Care Plan and Education Psychology advice and assessments would be considered.
• Discussion around the CwD criteria and whether a child or young person meets the criteria or allocation to CwD should take place between Children's Social Care and CwD managers.
10. The policy was updated in January 2023. The criteria remained largely similar with more explanation. For example:
• The CwD Service are a specialist service. Appropriate referrals to the service include children and young people aged 0 – 17 who have a lifelong:
1. severe or profound learning disability
2. complex health needs
3. severe or profound physical disability
4. severe sensory impairment
• Children and young people must have received these diagnoses from a doctor, consultant or psychologist as appropriate
11. It gives a more comprehensive description of the different levels of disability in terms of mild, moderate, severe and profound, across a range of functions and personal care needs, such as mobility, incontinence and communication.

What happened

12. Mrs B’s daughter D has a number of health conditions which affect her daily life. She needs support with everyday tasks and supervision to keep her safe. She has an Education, Health and Care (EHC) Plan.
13. In September 2021 Mrs B requested a social care needs assessment because she was struggling to manage D’s behaviour. CwD service considered her case but said there was no evidence to suggest she had severe physical disabilities or severe learning disabilities in line with the criteria for the CwD service.
14. The Council carried out a children and families assessment, meeting with Mrs B and D in October 2021 and again in January 2022. It noted that Mrs B would ideally like one night a month where D could stay overnight somewhere else and someone to take her out for a few hours on a weekend to do some activities. The social worker proposed to offer behaviour work through the children and family well-being service and a family group conference to identify whether any family or friends could help with the caring responsibilities. It also highlighted a day breaks service.
15. It is not clear when the assessment was completed. A manager authorised the document in March 2022, but it refers to events in May 2022. The manager noted that Mrs B said the day breaks service was not suitable as it clashed with existing after-school clubs but said a different service operated in the school holidays which would be helpful. They also supported a family group conference to see if more support could be provided by other family members. The document is unsigned by either the social worker, the manager or Mrs B.
16. The Council has provided a copy of a carer’s assessment document dated 24 January 2022 done by D’s social worker. It is unsigned by either the social worker or Mrs B. It details the impact of Mrs B’s caring responsibilities on Mrs B and the fact she would like one day and one night a month of respite care. There is no assessment of this request in the document.
17. In April 2022 after an EHC Plan review the Council acknowledged she had a severe disability but did not meet the criteria for support from the CwD service as she did not have a diagnosis of a severe to profound learning disability or physical disability. D’s social worker wrote to Mrs B explaining this on 30 May 2022.
18. In July 2022 Mrs B made a formal complaint. She said she had asked for an assessment of her and her daughter in the autumn of 2021, but she had not received the assessment until July 2022. She also complained about the social worker’s conduct and a delay in amending D’s EHC Plan following the review in March 2022.
19. In responding, the Council acknowledged it had received a complaint from her about children’s social care services in relation to her daughter, D. It confirmed it had looked at the social care records, spoken to D’s social worker and her line manager.
20. It apologised for the significant delay in completing the children and families assessment which should have been done within 45 working days (9 weeks). It said due to staffing difficulties and a high number of referrals, this target had been significantly exceeded. It said it had discussed the complaints about the social worker’s conduct but there was no evidence she had not returned Mrs B’s calls and the social worker had not intended to cause offence by discussing her own children with Mrs B. It said the criteria, to receive services from the CWD service, had been set by the Council and D did not meet them.
21. Mrs B escalated her complaint on 20 September 2022. Mrs B sent emails chasing a response on 29 September 2022 and 13 March 2023.
22. The Council responded on 30 March 2023 to a different complaint about a delay in amending D’s EHC plan after a review in January 2023. It apologised for the delay and sent the draft EHC plan to Mrs B on 4 April 2023. The Council in its response did not refer to Mrs B’s outstanding complaint from September 2022.
23. Mrs B made a further complaint on 25 April 2023 requesting a response to the complaint she made in September 2022 and asking for an updated assessment of D in respect of social care support and access to direct payments as Mrs B felt D met the criteria for the CwD service.
24. The Council responded on 24 May 2023 at stage two of the corporate complaints procedure. It said D has been assessed several times, most recently in March 2022 and if Mrs B felt her needs had changed, she could request a reassessment. It noted the complaint about the social worker’s conduct had been dealt with in the stage one response.
25. Mrs B complained again in July 2023 as she did not consider the Council had responded to her stage two complaint from September 2022. The Council issued the final EHC plan on 29 August 2023 . It did not refer to D having any social care needs.
26. The Council responded to Mrs B’s complaint on 18 September 2023, under the corporate complaints procedure. It apologised for the excessive delay in responding to the complaint. It confirmed it had sent Mrs B the final EHC plan on 29 August 2023 and apologised for the delay in completing this process. But it acknowledged that in responding to this additional complaint about the EHC plan process, it had not addressed the failure to respond to the original complaint made in September 2022. It apologised for this.
27. It went over the events since July 2022, apologised for the delay in responding to all her complaints and for the confusing communication during the intervening period. It confirmed D was not eligible for services from the CwD service because she did not meet the criteria: specifically she had a severe learning difficulty rather than a severe learning disability. It said if Mrs B had medical evidence from a qualified paediatrician to the contrary she should provide this. It apologised for the delays, said it would review the complaints procedures and offered her £300
28. Mrs B complained to us.
29. In response to my enquiries the Council has explained the difference between a severe learning disability and a severe learning difficulty.

“A severe learning disability constitutes a condition which affects learning and intelligence across all areas of life. So a severe learning disability has a severe impact on daily living and functioning. A severe learning disability is a permanent condition. 

A learning difficulty constitutes a condition which creates an obstacle to a specific form of learning but does not affect the overall intelligence across all areas of life – so a severe learning difficulty means that the obstacle of a specific form of learning is severe and significant but it does not necessarily impact intelligence across all areas of an individual's life.”  

30. It says that in reviewing the information held about D on its systems, it considers that D may potentially meet the criteria for assessment by the CwD service due to the impact of her physical disabilities on her daily life. It says a team manager from the CwD service will contact Mrs B by end of January 2024 and offer an updated assessment by a CwD social worker including a carer’s assessment.
31. It said the complaint was dealt with under the corporate complaints procedure because:
• D was not in receipt of social care services.
• The assessment completed was specifically for consideration of services from the CwD service and this service is not under the remit of social care provision and so there were no social care matters to be investigated.

Analysis

delayed excessively in completing a Children and Families Assessment

32. Mrs B requested an updated assessment of D’s needs in September 2021. As the assessment document is unsigned and undated, it is not clear when the assessment was completed but it was not before March 2022. I have no reason to dispute Mrs B’s account that she did not receive a copy until July 2022, ten months after her request. She made a formal complaint shortly after receiving this document. The Council accepts it delayed excessively in completing the assessment. It should have taken a maximum of nine weeks. This was fault which caused Mrs B distress and frustration. It also meant the Council failed to follow through with its offers to assist Mrs B in exploring options to support her in caring for D.

Children with Disabilities (CwD) service

33. The Council considered Mrs B’s request in September 2021 but there is no evidence it explained to her in writing why D did not qualify for services. This was fault. It considered the matter again in April 2022 and wrote to her on 30 May 2022 to say D did not qualify because she did not have a severe or profound learning disability or physical disability, but it gave no evidence to support its view. This was fault as Mrs B was unable to understand why the decision had been made when she had provided evidence of B’s physical and mental health conditions.
34. The Council repeated this view in the stage one complaint response in August 2022 with no further explanation and then in the stage two response in September 2023 drew a distinction between learning disability and learning difficulty, saying D did not have a diagnosis of the former.
35. In January 2024 the Council has decided that D may qualify for services due to her physical disabilities and will carry out a reassessment visit with a CwD social worker. I consider the Council should have properly reviewed this decision as part of the complaint investigation in either August 2022 or September 2023 as D’s physical conditions have been present and unchanged throughout this period. The failure to do so was fault which has caused Mrs B significant distress and frustration and uncertainty that D may have missed out on support services for a significant period of time.

Complaint handling

36. The Council accepts it delayed excessively in responding to Mrs B’s complaint and failed to notice when responding to a different complaint that the earlier one was outstanding. It has apologised for this and offered Mrs B £300.
37. It maintains it was correct to use the corporate complaints procedure because the CwD service sits outside the children’s social care service and so there are no social care functions which the Council could investigate.
38. I disagree with this view. Regardless of which area the CwD service sits within, the issues Mrs B complained about were social care functions relating to the children and families assessment, the actions of the social worker and the criteria for receiving an assessment and support from the CwD service including direct payments. These are all social care functions which are eligible for investigation through the statutory procedure and the Council should have investigated them under that procedure. The failure to do so was fault, which caused uncertainty for Mrs B and D as to whether the Council would have considered D’s case in more detail and referred her for a formal CwD service assessment at an earlier stage, if it had considered her complaint through the statutory procedure.

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Agreed action

39. I welcome the Council’s apology and offer to pay Mrs B £300 for the delay in the assessment and complaints process and to review the operation of the complaints process. I also welcome its offer to carry out an assessment visit with the CwD service now. However, I did not consider that is sufficient to remedy the injustice caused by the Council’s failings and I recommended that the Council:
40. Within one month of the date of my final decision:
• Apologises to Mrs B for the delay in recognising that D’s physical disabilities may qualify her for support from the CwD service; and
• pays her £500 for the uncertainty this delay, along with the delay in completing the initial children and families assessment, have caused;
41. Within two months of the date of my final decision:
• Completes the CwD assessment and notifies Mrs B of the outcome. If she is unhappy with the outcome and makes a complaint, the Council should deal with the complaint under the statutory children’s complaints procedure.
42. Within three months of the date of my final decision reviews its complaints procedure to ensure that complaints about children’s social care services are identified and dealt with through the statutory procedure regardless of which team is involved.
43. The Council has agreed to my recommendations. It has already arranged with Mrs B to start a new assessment and should provide us with evidence it has complied with the rest of the agreed actions.

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Final decision

44. I consider this is a proportionate way of putting right the injustice caused to Mrs B and D and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman