Leicestershire County Council (18 005 770)

Category : Children's care services > Other

Decision : Upheld

Decision date : 23 Sep 2019

The Ombudsman's final decision:

Summary: Ms X complains the Council left her to deal with a building contractor after 2015, when shoddy works to adapt their home were carried out and that it has since failed to re-assess her daughter, Z, as a child-in-need. She says this has means Z has not been able to use the downstairs shower that was installed. Ms X did not raise with the Council the matter of Z being a possible child-in-need until 2018, so we will not consider matters before then. But the Council failed for six months after we first told it the failed adaptations might mean Z is now a child-in-need to recognise its duty to re-assess her. It will not be possible to know if this delay caused any injustice to Z until it completes the overdue assessment.

The complaint

  1. The complainant, whom I shall call Ms X, complains the Council:
  2. Failed to meet its responsibilities to her daughter, Z, as a child in need under the Children Act 1989, in that it has failed to provide the adaptations and support she requires for a disabling condition and to work with other agencies to ensure her needs are met;
  3. Ms X also complains the Council has wrongly expected her to press her landlord and its contractors over delays and failures in completing adaptation works, failed to take responsibility for ensuring Z’s needs were met when adaptations proved unsatisfactory, and failed to re-assess her needs over time.

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The Ombudsman’s role and powers

  1. If we are satisfied with a council’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)
  2. 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
  3. The law says we cannot normally investigate a complaint unless we are satisfied the Council knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
  4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

  1. I read Ms X’s complaint and spoke to her on the telephone I made written enquiries of the Council and considered what it sent me. I asked Ms X for evidence of her contacts with the Council since 2015. I made third party enquiries of the district council. I shared a draft of this decision with both parties, invited their comments and considered those I received.
  2. English local government is divided into two tiers in many areas into two tiers. This creates a fine distinction in the overlap between the duties of a council with social care responsibilities and those of a council responsible for a disabled facilities grant. I would not expect the average parent of a child with disabilities to understand this. Therefore, I have exercised discretion to consider Ms X’s complaint back to 2015, when works to adapt her house began.

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What I found

  1. Ms X’s daughter, Y, has disabilities that affect her mobility. Her landlord completed adaptations to her home in 2016. Ms J complained to her landlord about this work, and the delays to it. The Housing Ombudsman Service considered Ms J’s complaint and issued a decision in late 2017.

Our contact with the Council

  1. Ms X complained to us about the Council in 2018. She had not yet complained to the Council, so we asked it in September 2018 to consider her complaint at Stage 2 of the statutory complaints process for children’s social care complaints. We sent a summary of complaint similar to the one above, referring to Z as a possible child-in-need.
  2. The Council wrote to us on 1 March 2019. It told us the matter was one for the district council. When we told it we would investigate the complaint, it told us again the complaint was not one for it. In its later response to my enquiries, it said it had forwarded Z’s case for a child-in-need assessment on 22 March 2019 and that this would be carried out in July 2019 as there was a backlog.

What should have happened?

  1. Councils with social care responsibilities must consider, when approached by a parent or someone else on behalf of a child, if he or she is a child-in-need. In terms of s.17 of the Children Act 1989, a child-in-need is one who, without assistance, is not likely to achieve outcomes similar to those of most children. This duty, and the duty to provide adaptations under s.2 of the Chronically Sick and Disabled Persons’ Act 1970 are separate from the duties of district councils in areas where local government has two tiers. In this case, the Council, if approached, should have considered in Z was a child-in-need and, if so, whether it needed to assist her or to provide adaptations.
  2. Beyond its duties under the Children Act 1989 and the Chronically Sick and Disabled Persons’ Act 1970, I would expect a council to raise an issue with another suitable authority where it was aware of it. But a council without responsibility for housing or disabled facilities grants cannot supervise another council or act as clerk of works.
  3. Councils with social care responsibilities must deal with complaints by or on behalf of children about social care via a statutory complaints procedure. This is laid out in Getting the Best from Complaints 2006.

What happened and was it fault?

  1. As already stated, the district council was responsible for the disabled facilities grant that led to the building work. The work was shoddy, as an email from the district council to the builder in September 2015 shows. It was for the district council to pursue this.
  2. According to the emails I have seen, Ms X began to complain about problems with the work in March 2015. Between then and September 2015, the emails show the Council offered to chase the district council. It also saw the works and raised the issue with the district council. The district council told the Council in August 2015, after it made contact, that it had no idea the works were so bad. The emails show Ms X moved Z out of the house twice between March and September 2015. In early September 2015, the Council closed the case after a meeting on site as it was satisfied the shower room was usable and the district council would deal with the remaining snags. While Ms X did not want the Council to close the case, it could do so. This was because it took the view the shower room was usable and the district council, which was the proper authority, would act to remedy any remaining defects. I cannot say the Council was wrong to take that view. It also acted appropriately by contacting the district council when it was not clear what was happening.
  3. Ms X’s decision to move Z out of the house when the works took away her washing facilities meant she had her needs met elsewhere during the time she was away. While Ms X understandably found this unsatisfactory, the matter occurred with little notice and she reacted sensibly by meeting Z’s needs herself. I have seen no evidence she asked the Council to assess Z as a child-in-need. Halting the work and waiting for the Council to assess the situation would have created further delay in what had already been a drawn-out process for the family. In these circumstances, I cannot say the Council was at fault as the situation in which it would have had to assess Z did not arise.
  4. Between September 2015 and September 2018, when we alerted the Council to Z possibly being a child-in-need, I do not find it failed to act. This is because Ms X, understandably, focussed on the district council, to whom she complained during this period. The only email I have seen from her to the Council was one in 2016, sent as a copy when she was complaining to the district council. As it was only a copy and she was complaining to the district council, I would not have expected the Council to take any action. I wish to be clear that I do not blame Ms X for not raising the issue with the Council. As stated earlier, I would not have expected her to separate the responsibilities of two councils. But equally, I would not have expected the Council to react to receiving a copy email about a complaint to another council, whose responsibility it was to deal with it.
  5. After September 2018, however, my finding is different. We raised with the Council in September 2018 the issue of Z as a possible child-in-need. We asked it to consider Ms X’s complaint at Stage 2 of the statutory complaints procedure. Given what I have found, it would have been entitled to find that it had not been at fault earlier. But it should have recognised its duty in September 2018 to assess Z as possible child-in-need in the terms of s.17 of the Children Act 1989 given we told it Ms X was saying Z could not use the shower room. That it failed more than once between September 2018 and March 2019 to recognise any duty to assess under s.17 of the Children Act 1989 was fault. That it failed to use the statutory complaints procedure while failing to acknowledge its s.17 duty was also fault. I will deal with any potential injustice to Z in the next section.

Has the fault caused injustice?

  1. At time of writing, the Council has not finished the assessment. It is not yet possible to know if Z has lost out as a result of the Council’s delay of six months in accepting its duty and the delay of ten months in starting it. Should the assessment find Z has unmet needs under s.17 of the Children Act 1989, Ms X would be welcome to return to us so we can consider the injustice this delay may have caused to her and to Z.
  2. I am concerned that the Council maintained its position that it had no duty despite us having laid this out more than once to it. I have therefore made a recommendation below to address this.
  3. Regardless of the above, the Council’s failure to use the proper complaints process cannot have caused Ms X or Z any injustice. This is because she remained in contact with us and we began an investigation no later than we would have done had the Council followed the proper process.
  4. In response to the draft decision, Ms X told me she felt Z has been significantly let down by the Council. She says she has had to waste her time pursuing problems that could have been addressed much earlier. She said she hopes matters will improve in the future.

Agreed action

  1. As it is not yet known if Ms X or Z have suffered any injustice from fault, I have not made any recommendations concerning them.
  2. However, to remove the potential for injustice to another family, the Council will, within three months of the final decision:
  • Review its relevant policies and procedures to ensure they refer to the possibility that the Council may owe duties to children under s.17 of the Children Act 1989 and s.2 of the Chronically Sick and Disabled Persons’ Act 1970 when another authority has responsibility for work carried out after a disabled facilities grant;
  • Arrange training for relevant staff to ensure they are aware of these possible duties; and
  • Remind staff that complaints about children’s social care by or on behalf of children must be dealt with under the statutory procedure laid out in Getting the Best from Complaints 2006.

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Final decision

  1. I have completed my investigation, upholding the part of the complaint that concerns the Council’s actions since September 2018, though not those before then. Ms X is welcome to return to us when the Council has assessed Z as a possible child-in-need. Unless she is prevented by matters beyond her control, she should do so within 12 months of the decision.

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Investigator's decision on behalf of the Ombudsman

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