Summary: Mr X complained the Council failed to increase the direct payment for Mr Y. We found fault as there was no review of Y’s payment. This caused avoidable uncertainty about the outcome. The Council will apologise and make a symbolic payment.

The complaint

1. Mr X complained he received a direct payment of £150 per week for nine years for his son Mr Y. He discovered in February 2024 that the payment was for 15 hours per week, and then in November 2024 that the payment rate per hour was increased periodically for all direct payment recipients.
2. Mr X says this caused a financial loss and wants the Council to reimburse the money Mr Y should have received.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

Our Guidance on Jurisdiction explains historical allegations are where so much time has elapsed since the fault complained of occurred, that an investigation is likely to be impended by the passage of time. We consider each case individually, and we may decide that some or all of a complaint is not practicable to investigate. If a complaint involves matters which took place over several years, we may restrict the timescale if we are not confident there is a realistic prospect of reaching a sound, fair and meaningful conclusion.

6. We take into account:
• Evidence: the older the events are, the more difficult it is to establish facts with reasonable confidence. Even if some evidence is available, we need to be careful it is reliable and provides a full picture.
• Context: Sometimes guidance and standards have changed making it more difficult to reach a firm and fair conclusion about fault.
• Remedy: It may not be possible to achieve an appropriate remedy due to the difficulty establishing causality given the length of time already passed and the changes in the situation of the parties.
7. 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.
8. 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)
9. 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 have and have not investigated

10. The complaint is not late because Mr X only found out about the Council’s increase in the hourly rate for direct payments in 2024. So he became aware of potential fault within 12 months of complaining to us.
11. The complaint is historical. I have taken into account our Guidance on Jurisdiction on historical allegations and applied it as follows:
• Evidence: the Council’s case recording system has changed. While the parties dispute what evidence is available, relevant records like the direct payment agreement, child in need plans and children and family assessments have not been disclosed. The Council says these are no longer accessible or available due to system upgrades. Mr X disputes this, pointing to public statements made by the Council on the changes in record systems. Some relevant evidence is available on an increase to the direct payment rate in 2022 but not what the rate was between 2014 and 2021. I am not satisfied there is a strong enough evidential basis to make findings between 2014 and 2021.
• Context: The law and guidance in this area has not changed.
• Injustice and remedy: Mr X has provided receipts of some expenditure which he says was spent from their personal funds. The evidence he has provided is for items that would not likely be covered under the short breaks scheme. I am not satisfied that I could achieve a meaningful or fair remedy between 2014 and 2021.
12. I have restricted the timeframe of my investigation to March 2022 between January 2022 and February 2023 on the basis of lack of key evidence and difficulties working out an appropriate remedy for any injustice. I do not consider I could reach a sound conclusion. Where I have mentioned events outside this period, it is for context only.
13. We have issued a final decision on another complaint from Mr X about the way the Council handled Y’s transition from children to adult social care including the decision to stop his childrens services direct payment. My investigation does not therefore cover this matter.

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How I considered this complaint

14. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
15. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

16. Councils shall provide services designed to give carers of disabled children breaks from caring (Children Act 1989, Schedule 2, paragraph 6)
17. Councils must have regard to the needs of carers who wouldn’t be able to continue to care without short breaks. And they must prepare a short breaks statement setting out details of available services (Regulations 3, The Breaks for Carers of Disabled Children Regulations 2011)
18. Councils must provide a range of short breaks services and give families the choice of accessing short breaks using a direct payment. It is good practice for councils to ensure a ‘local offer’ provides some families with access to short breaks without any assessment. A ‘local offer’ can enable councils to direct resources to services rather than funding unnecessary assessments. In some councils, all disabled children who are registered, can access the local offer. It means families can refer themselves to these services as the child’s eligibility has already been established. (Short breaks for carers of disabled children. Departmental advice for local authorities, March 2011)
19. The Council’s short breaks statement in 2016 said carers can have a personal budget to contribute towards the cost of short breaks and the budget must be used to pay for a service which allows their child to enjoy an activity and gives them a break from caring responsibilities. A personal budget can be taken as a direct payment (a monetary payment) or a council-managed budget.
20. Councils must review the making of direct payments: 

• at least once within the first year of the direct payments being made;
• at appropriate intervals, not exceeding twelve months, thereafter.

(The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009)  

What happened

Background

21. The Council’s record of funding panel decisions said in November 2014, the panel agreed to increase Y’s personal budget to 15 hours per week (£150) as an interim arrangement, as soon as care providers are identified for the additional hours.

Key facts

22. Y turned 18 in February 2023. His direct payment stopped at that time and was later reinstated pending an adult social care assessment.
23. Mr X complained to the Council in October 2024 about the issues he has raised with us and about other issues which he has not pursued in his complaint to us. Mr X said in his complaint to the Council he had found out through freedom of information and subject access requests what the Council’s DP hourly rate was and that it had increased over time. He said Y’s social care support had not been reviewed for 10 years. The Council did not respond to this part of Mr X’s complaint, saying he needed to contact the LGSCO. We asked the Council if it considered it had completed the complaint procedure. The Council told us it considered its complaint procedure had been completed. So, we decided to investigate.

Information from Mr X

24. Mr X made a request for information to the Council under the Freedom of Information Act (FOIA). He asked the Council to say what the hourly direct payment rate was for short breaks in children’s social care services. The Council said it ‘previously paid £11.50 an hour, however, it was not sure of the exact years and the payment increased in 2022 to £13.50.’

Information from the Council

25. The Council told us the direct payment rate went up for children’s social care for all families from £10.50 to £13.50 at the end of October 2023. This contradicts the information it provided in response to Mr X’s FOIA request which was the rate went up in 2022. The Council also said:
• There was no children and family assessment on file and no requirement for one. The DP was most likely made at the parents’ request.
• There was no review of the DP as this was a short break direct payment. Reviews would be disproportionate to the funding and level of support identified.

Findings

26. There was a failure to carry out yearly reviews of the DP for the investigation period in line with the regulations I have described in paragraph 20. The regulations do not give authorities the option of not reviewing where it would be disproportionate. The failure to review was fault. On balance, had the Council reviewed the DP, it is likely it would have applied the uplift in 2022.
27. As a result, Mr X and his family had less funding available to them to enable them to arrange short breaks than would have been the case had the Council acted without fault. This caused avoidable distress and a loss of opportunity.

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Agreed Action

28. Within one month of my final decision, the Council will issue:
• An apology to Mr X to reflect the avoidable distress and confusion caused by the failure to review the direct payment. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• A payment of £500 to reflect the avoidable distress and loss of opportunity caused by the failure to review Y’s direct payment.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman