Summary: There was fault by the Council in the way it completed the Stage 3 statutory children’s complaint outcomes it had agreed and in failing to consider whether a financial remedy for missed short break provision was merited. The Council will apologise, make a time and trouble payment and now consider a financial remedy.

The complaint

1. Ms x complains the Council failed to complete recommendations agreed during a statutory children’s social care complaint procedure.
2. Ms X understood an agreed action to be to consider a financial remedy for missed provision. Ms X says the Council did this for missed education but not for missed social care provision.

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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. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough, and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.
5. 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

6. I have considered information provided by Ms X and the Council including:
• Complaint documents
• Social care documents.
7. I have considered relevant law and statutory guidance including:
• The Children Act 1989
• The Children and Families Act 2014
• The Special Educational Needs and Disability Regulations 2014
• The Breaks for Carers of Disabled Children Regulations 2011
• Working Together to Safeguard Children statutory guidance.
8. I have spoken to Ms X by telephone.
9. Ms X and the Council had an 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

Law and Guidance

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.
13. 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.

14. The expectation of ‘Working Together’ guidance 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 consider their available resources when providing services under section 17 of the Children Act.
15. 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.
16. 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.
17. 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.
18. 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.

What happened

19. After an unsuccessful transition from primary to secondary school Ms X’s child, who has special educational needs (SEN), stopped being able to attend school. Ms X’s child was referred to various services to identify the underlying cause of their anxiety around attending school and the nature of their SEN.
20. Ms X’s child was also referred to Early Help services.
21. In early 2023, Ms X complained about lack of support from social care. Ms X’s child was subject to child in need, and later child protection, procedures due to concerns about their social isolation and refusal to see any professionals or attend school. Ms X complained the social worker did not know what a carers assessment was and that her need for a break was not considered despite her child being out of school for over three years. Ms X says she repeatedly requested a personal budget and help with transport as they lived in an isolated area and this contributed with problems getting her child to engage in outside activities. Ms X also raised concerns about finances. She says the social worker told her to get a job, but Ms X said this was not possible due to her child being at home all the time. Ms X considered their needs should be met via the Disabled Children social care team rather than Child Protection.
22. These complaints were considered under the statutory children’s complaint procedure. A Stage 3 review by the Council of the independent investigation carried out at Stage 2, led to the Council made the following findings and recommendations relevant to this complaint:
• It upheld the focus by social care had been too much on parenting capacity and child protection than identifying the family support needs. The Council had not clearly explained how carer needs were considered as part of a child and family assessment or specified Ms X's needs as a carer, despite this being a central part of her complaint.
• It upheld Ms X had requested support listed on the Council’s own website for parent carers (such as short breaks) but the Council’s assessment had failed to highlight how Ms X was coping as a carer and the impact on her.
• The Council noted support such as short breaks had been considered by social care but not considered viable as Ms X’s child would not leave the home and was not accepting of support.
• The Council agreed to undertake a new child assessment and a separate assessment of Ms X’s needs as a carer.
• The Council agreed to apologise.
23. The new children and family assessment was completed in late Summer 2023. The assessment identified Ms X had limited family support and felt unsupported by agencies. It noted Ms X was exhausted and felt no longer able to meet her child’s needs. The social worker identified Ms X needed a break from caring and a target date of early September 2023 was set to achieve the goal of Ms X getting a break and feeling more able to manage her caring role. Activities outside the home were to be identified for Ms X’s child, who was by now attending education provision.
24. Regarding the outcome that Ms X have a separate carers assessment, she was referred to adult social care. This referral was declined as this team only provided assessments for carers of adults. Adult social care put the request back to children’s social care because Ms X was caring for a child.
25. Children’s social care considered closing their case in Winter 2023 because they were not providing services to the family and advised Ms X she could re-refer if she required support.
26. Ms X complained to the Ombudsman the Council had not implemented the agreed recommendations from the Stage 3 complaint including a carer’s assessment and a remedy for past missed provision.
27. The Council told me there was no agreed action at stage three to consider a financial remedy for missed social care provision if Ms X was later assessed to be eligible, although it had provided a remedy for missed education.
28. In early 2024 Ms X told the social worker a family member had been able to take her child for outings over Christmas and could provide respite support. Ms X also asked (again) for help with driving lessons to help access activities.
29. In response to this information children’s social care decided it could offer Ms X short breaks.
30. The short break was to be set up by way of a direct payment once Ms X’s relative had completed required checks. The Council says there was delay in information being returned by the relative. Ms X told me in May 2024 the short break provision is still not in place.
31. I asked the Council in my enquiries whether now it had made a decision that short breaks were suitable if it would now consider a financial payment for not offering this service sooner. The Council referred to the delay by the relative in returning information in 2024 and said this was evidence there had been no delay by the Council and so a payment was not merited.
32. Ms X told me the failure to provide short breaks / respite during several years when her child was not attending school meant she did not get a break from caring. She could not attend medical appointments for herself. Ms X says her child became socially isolated, to the point they would not leave the house. Ms X welcomes the short break support now offered but considers this should have been provided when her child first became unable to attend school and when she first requested ‘respite’.

Analysis

33. The Council agreed as part of the Stage 3 review to complete actions including a new child in need assessment and a separate carers assessment.
34. The Council did complete the new child and family assessment. This identified Ms X had unmet needs as a carer.
35. The Council wrongly referred Ms X to adult social care for a carer’s assessment rather than children’s services completing the assessment. This referral was refused as Ms X was not eligible as she was not caring for an adult. This wasted time and caused Ms X unnecessary frustration, time and trouble.
36. The Council’s focus was on whether Ms X’s child could leave the home to attend a short break activity. This was fault. The purpose of short breaks is to meet the needs of parent carers to continue to provide care, or to do so more effectively, by giving them breaks from caring. It is often the case that this is achieved by providing an activity for the disabled child to attend, but short breaks can also take place within the home. It is apparent this option was not considered by the Council or the stage two investigation.
37. Councils can decide to organise their work so they have a specialist team that deals with disabled children with the most complex needs; it is not fault if not all disabled children are assessed by the specialist team. However, councils must ensure that all staff assessing children are trained in the relevant law and guidance and that any parent carer or disabled child eligible for services can access them regardless of which team they are assessed by.
38. The Council has considered whether there was delay in 2024 from the point it agreed to provide short breaks until the point they were in place. It has not considered whether a remedy is due for missed short breaks for the years Ms X’s child was out of school and she did not get a break from caring up to when any new provision was in place.
39. I consider there was fault in the stage two investigation and stage three review in failing to acknowledge short breaks can take place within the home as the main purpose is to provide a break to the carer, not an activity for the child. Ms X has now been found entitled to short breaks. I consider this decision could have been reached earlier if Ms X’s needs as a carer had been properly considered. The Council has accepted the shortcomings identified in the way it assessed parent carer needs in this case. I therefore consider it is appropriate the Council consider whether a financial remedy for delay in providing short break services is appropriate.

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Agreed action

Within four weeks of my final decision

40. The Council will apologise to Ms X for the faults identified in this decision statement.
41. The Council will pay Ms X £150 for the frustration, time and trouble in wrongly referring her to adult social care and in her needing to bring a complaint to the Ombudsman to get previously agreed actions implemented.
42. The Council has now decided to offer short breaks to Ms X. It will now consider whether to provide a financial remedy for missed provision for the period between Ms X requesting ‘respite’ when her child stopped attending school, and the provision of the short breaks. If Ms X remains dissatisfied with the Council’s decision about a financial remedy, she can bring her this aspect of her complaint back to the Ombudsman for us to consider.
43. If it has not already done so the Council will ensure the short break provision is in place.

Within two months of my final decision

44. The Council will ensure that all social workers and family support workers, including those who work within child protection or Early Help, are aware of the relevant law and guidance concerning disabled children and parent carers and either trained to consider whether services should be provided under s.17 Children Act or s.2 CSPDA when conducting assessments, or able to identify the relevant issues and refer to a team that can assess these.
45. The Council will provide us with evidence it has complied with the above action.

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Final decision

46. I have completed my investigation. There was fault by the Council in wrongly referring Ms X to a team that could not offer the assessment agreed at Stage 3. This is fault and has caused additional time and trouble. There was also fault in the Council’s failure to consider Ms X’s needs as a parent carer and, in particular, whether she was entitled to short break provision when she first requested support. I am satisfied completion of the above agreed actions is a suitable resolution to the complaint. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman