Summary: Ms X complained about the way the Council dealt with her child’s direct payments and that it failed to respond to her about this matter. The Council was at fault for not considering Ms X’s complaint through the statutory children’s complaints procedure. The Council will apologise, make a payment to Ms X for the distress and frustration caused and consider her complaint further.

The complaint

1. Ms X complains about the way the Council dealt with her child’s (Y’s) direct payments. She says the Council;

• failed to start direct payments on the date agreed;
• failed to backdate the payments to the correct date;
• failed to provide the agreed additional six hours of payments to cover school holidays; and
• failed to respond to her formal complaint.

2. Ms X says this has caused her so much stress that it has impacted her mental health and she is now off work sick, due to stress. She says she also keeps receiving invoices from the care agency which she is unable to pay.

Back to top

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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

5. I have investigated Ms X’s complaint that the Council failed to respond to her about the concerns she raised about the direct payment.
6. I have not investigated Ms X’s substantive complaints about the way the Council dealt with Y’s direct payments. This is because 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. This independence is not available to complaints put through the corporate complaints procedure or service requests. Because of this, we expect people to complete the complaints procedure before we will consider whether there were any flaws in how the Council investigated their concerns.

Back to top

How I considered this complaint

7. I have considered the information Ms X provided. I also considered the information given by the Council in response to my enquiries.
8. Ms X and the Council had the opportunity to comment on my draft decision. I considered these comments before making a final decision.

Back to top

What I found

Relevant legislation and guidance

Section 17 duties

9. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
10. 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.

Duty to safeguard and promote welfare

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.

Direct Payments

12. 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.
13. Persons receiving DPs must agree to DPs and keep and submit accounts.

Statutory complaints procedure

14. The law sets 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.
15. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
16. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
17. Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
18. The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days where required.
19. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.

What happened?

20. Y is a child with a disability. Because of this, the Council completed an assessment and found that Y was eligible for support to meet their needs under Section 17 Children Act 1989.
21. In March 2023, Ms X sent a request to the Council to receive funding for this support by direct payments.
22. A care agency started to support Y in May 2023. The care agency expected Ms X to pay for the care via direct payments.
23. The Council agreed to the direct payments in July and said it would backdate these payments to May 2023.
24. Ms X spent many months chasing the Council to ask it to start making these payments. She also complained informally to individual social workers on several occasions.
25. On 10 January 2024, Ms X made a stage one complaint to the Council, she said:

• the Council encouraged her to change Y’s support to be funded by direct payments and so she decided to move Y’s support to be paid for by direct payments;
• the Council did not support her with this process;
• there was a delay in receiving the direct payment pre-paid card and when she did receive it, it had a zero balance;
• despite contacting several social workers and Council staff, this issue had still not been resolved and she could not pay the care agency.

26. Ms X said this had left her feeling traumatised and stressed as she was receiving invoices from the care agency which she could not pay.
27. The Council processed the first direct payment in late January 2024. The Council said that due to a turnover in staff, it did not set up the payments properly and it did not address this until Ms X made a complaint about it.
28. The Council responded to Ms X on 14 February saying it had dealt with her complaint by way of a service request rather than a complaint. It said it had now resolved the matter and made all payments. It apologised for the delay in resolving the matter.
29. Ms X responded to the Council to say there were still payments outstanding for the six hours per week during the school holidays. She also said the Council still needed to make a back payment to May 2023 so she could pay the care agency the outstanding invoices. Ms X said she was worried the care agency might end its support to Y if she could not pay these invoices.
30. In August, Ms X told these invoices were still outstanding and the care agency told her that she must pay the balances. Ms X said this is causing her great stress and worry. Ms X repeated her concern the care agency will stop providing support to Y if this matter is not resolved.

Analysis

31. Ms X raised a complaint about the Council’s actions in relation to Section 17 duties. The Council confirmed that it supports Y under Section 17.
32. Section 17 complaints are covered by the statutory children’s complaint procedure and so the Council should have considered it through that procedure.
33. The Council responded to Ms X’s complaint as a service request. The Council should have considered Ms X’s complaint at stage one of the children’s statutory complaint procedure. The Council did not do this and this is fault.
34. This has caused Ms X distress and frustration and meant that she did not have a formal review mechanism when she was unhappy with the Council’s response to her complaint.

Back to top

Agreed action

35. Within one month of the final decision the Council will:

• apologise to Ms X for the distress and frustration caused to her and her family for not following the statutory complaints procedure. 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 I have recommended in my findings.
• make a payment of £100 to Ms X to recognise the distress and frustration caused to her and her family for not following the statutory complaints procedure;
• progress with investigation of Ms X’s complaint at stage one of the children’s statutory complaints procedure; and
• remind staff dealing with complaints of the importance of following the statutory complaints procedure in relation to section 17 matters.

36. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

37. I have completed my investigation with a finding of fault causing injustice.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman