Summary: We will not investigate this complaint about the Council’s decision not to offer direct payments to Miss X to assist with her children’s care needs. The Council acted properly in assessing the children’s needs under its criteria and we cannot adjudicate matters of lawfulness, which only a court could decide. Although the Council took too long to carry out its assessment and to deal with Miss X’s complaint, this did not cause her to lose direct payments.

The complaint

1. Miss X said the Council wrongly refused her request for direct payments to assist with the care needs of her children. She said the refusal was based on the children being “just autistic” and “still young”. She said the Council’s policy was unlawful and failed to recognise autism diagnosis as a complex disability or that an individual with autism can have complex needs.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

Back to top

How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

6. The Council’s criteria for accessing direct payments, as quoted in the complaint correspondence, does not exclude autism as a possible cause of need for care services. It states that the threshold for service is a severe or profound disability relating to learning, communication or physical need, and that autism does not meet the criteria unless it is in conjunction with that level of need. The criteria provide for escalation of the decision in cases of doubt. We cannot determine if these criteria are lawful. Only a court can do that.
7. The Council assessed Miss X’s children’s needs against its criteria and held two panel meetings. It gave reasoned arguments why its view was that the threshold was not met. We cannot substitute our view of the children’s needs for the that of the Council’s panel where it has reached a decision based on professional judgement and without procedural fault. That Miss X takes a different view of her children’s needs is not evidence of fault by the Council.
8. Although the Council took too long to issue its decision, and too long to deal with Miss X’s complaint, this did not cause injustice in the substantive matter of the provision of direct payments. This is because the eventual decision was not to agree the direct payments. Any other injustice caused by the delay is not sufficient on its own to warrant our further involvement.

Back to top

Final decision

9. We will not investigate Miss X’s complaint because:

• There is not enough evidence of fault by the Council in the way it reached it decision to warrant further investigation by us;
• Miss X has a right to go to court it would be reasonable to use to challenge the legality of the Council’s criteria as only a court could decide they are unlawful; and
• The delay in the assessment and the complaint process did not cause enough injustice that is separable from the decision in the substantive matter to warrant our further involvement.

Back to top

Investigator's decision on behalf of the Ombudsman