Summary: Ms X complains the Council has failed to properly consider requests for extra direct payments for her son’s care in light of clearly changing circumstances. The Ombudsman found there was some fault in the Council’s process. Although the overall decisions are ones it was entitled to take, our investigation has identified fault which only came about because of Ms X’s complaint to us. This caused Ms X an injustice in the form of her time and trouble and the Council agreed with our recommendation to remedy this with an apology and financial payment.

The complaint

1. Ms X complains the Council has failed to properly consider requests for extra direct payments for her son’s care in light of clearly changing circumstances. She says the offers made by the Council do not meet her son’s complex needs, or hers as a single parent. Ms X believes without immediate extra support she will struggle to cope with her caring responsibilities. She also found written remarks from the appeals panel insulting.

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What I have investigated

2. As part of my initial conversations with Ms X and my enquiries with the Council, I became aware Ms X has been disputing decisions taken by the Council’s resources panels about her son for some time.
3. I decided I should only look into events since the Council carried out an annual review in May 2018. I will explain why I have excluded earlier events at the end of this statement.

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The Ombudsman’s role and powers

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. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. 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)

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How I considered this complaint

8. I spoke with Ms X and read her complaint to the Ombudsman. I wrote to the Council to make enquiries and reviewed the material it sent in response.
9. I shared my draft decision with Ms X and the Council and I invited them to comment on it.
10. 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 also share this decision with Ofsted.

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What I found

11. Section 17 of the Children Act 1989 says a disabled child is a ‘child in need’. This means councils have a legal duty to safeguard them and promote their welfare and upbringing by their families by “providing a range and level of services appropriate to” their needs. They can provide services directly, indirectly or by making direct payments to a person responsible for the child.
12. The Council in this case tasks social workers to carry out assessments of children and then, if needed, a ‘resources panel’ meets to decide what care provision it should provide as a result. The panel relies on a scoring system to decide the level of need according to which criteria each child meets.
13. Ms X’s son, who I will refer to as Y, is a child in need because he has a disability. The Council accepts his status and has been making direct payments for several years to provide for his care arrangements. Ms X has been in dispute with the Council since at least 2016, as she disagrees with its decisions and wants more support to care for Y.
14. The resources panel completed an annual review of Y’s care provision in May 2018. The panel was a team manager from social services, an occupational therapist, a professional support assistant and an independent member from a charity. Their decision was Y’s existing package of 12 hours’ worth of direct payments per month should continue as it was meeting his needs.
15. Ms Y was unhappy with this decision. She asked a solicitor to write to the Council to appeal on her behalf. The appeal letter described 12 hours per month as “grossly inadequate and unsustainable”. Evidence to support Ms X’s appeal was provided in the form of a letter from Y’s school and letters from three medical professionals involved in his care. Ms X’s solicitor asked for the Council to instead provide 10 hours per week of support during term time and 20 hours per week during school holidays.
16. An appeals panel met in July 2018. A service manager from the department chaired the meeting, with a different team manager and professional support officer. The panel reviewed the evidence provided by Ms Y and decided to defer their decision pending a further assessment of Y’s level of need. Notes from the meeting show the panel felt Y’s child in need plan did not support the appeal.
17. A social worker completed a further family assessment in August 2018 and recommended more support for Ms X. As a result, when the resource panel met again in September 2018 it decided to increase Y’s care provision. It increased it from 12 to 16 hours per month and agreed Ms X could bank hours during the school holidays. However, this was substantially less than Ms X had asked for in her earlier appeal letter.
18. Ms X appealed to the Council in October 2018 after Y’s father was diagnosed with a serious illness. The appeal submission, made on Ms X’s behalf by a charity, said the diagnosis had a “significant impact” on Y and had “practical repercussions” for Ms X. She sent the letter in January 2019 and an appeals panel met the same month. The Council says the appeal was technically late but it still considered it.
19. A head of department and three colleagues chaired the appeals panel. They decided to offer Ms X an increase in provision by providing two alternatives to choose from. It said she could choose either a modest increase in the direct payment made or replace that with one week of respite in every seven using a residential short break for Y at a named facility.
20. The Council’s decision letter also said, “We do not provide childcare (additional hours as requested)”. Ms X says this caused her distress, as she does not believe her request was for childcare and felt insulted the panel interpreted it that way.
21. The Council now accepts the wording could have been more sensitive. However, it says the panel’s role is to make decisions based on Y’s specialist social care needs in the context of his family arrangements. It says a significant part of Ms X’s application had referred to the fact Y’s father had originally been providing childcare while Ms X went to work. The panel intended to highlight childcare is a parental responsibility.

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Analysis

22. The Ombudsman is not an appeals body. It is not our role to review the evidence available to the appeals panel and reach a decision on what the right result is. Where officers take a decision having considered all the evidence and reached a professional judgement, we cannot intervene if it was properly taken. A decision will not be fault simply because Ms X disagrees with it.
23. In support of my investigation I have seen papers from the various panel meetings, including the evidence seen by the panel and some original notes taken at the time. I have also seen the decisions letters and considered the Council's explanation of what happened.
24. Overall, the evidence I have seen does not point to fault by the Council in its approach. The panel saw the evidence presented to support both of Ms X’s appeals. Notes from the time show this. When the panel was unsure, in June 2018, it asked for more evidence before reaching a decision.
25. As a result of my enquiries, the Council checked the panel’s application of its scoring system in September 2018. It discovered the panel underscored Y on one element based on the evidence available to it. This was fault. However, the Council says it has now backdated Y’s direct payment to reflect this. Despite remedying the financial loss, I still conclude it caused an injustice to Ms X as this error would not have come to light if she had not been put to the time and trouble of complaining to the Ombudsman.
26. The Council has also reflected on the decision it took in January 2019 and made changes. It has decided to offer a further direct payment equivalent to two nights of overnight provision. It thinks this will offer more flexibility to Ms X. It has also backdated this payment. This is a decision the Council has taken of its own accord and does not mean the original decision was fault.
27. The wording of the Council’s decision letter to Ms X in January 2019 was fault. It was insensitive to summarise Ms X’s request as one for childcare, particularly when the panel agreed more support was necessary. Having seen the original notes, it appears the person writing the letter took the wording directly from there. Although I accept the comment itself was based on a reasonable reflection of the Council’s duty to Y and Ms X, it should have explained it better to a parent of a child with complex needs.
28. I accept this caused Ms X injustice in the form of distress. The Council has told me it accepts this and will apologise to Ms X.

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Agreed action

29. By 12 September 2019, the Council has agreed to:
• Write to Ms X to apologise for her time and trouble in having to complain to the Ombudsman and for the insensitive wording in its decision letter in January 2019.
• Pay Ms X £200 in recognition of her time and trouble.
• Circulate a reminder to all resource panel members who write notes, and the staff members who then use those notes to write decision letters, of the need to use suitable language and give as much explanation as necessary to avoid causing unnecessary offence.
30. The Council should update the Ombudsman when it has completed these actions.

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Final decision

31. Although the Council’s overall decisions about Y’s package of care were those it was entitled to make, my investigation has identified some fault which caused Ms X an injustice which it should remedy.

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Parts of the complaint that I did not investigate

32. As I explained at the beginning of this statement, it is clear Ms X has been complaining about decisions taken by the Council about Y’s care provision since at least 2016. There were panel meetings in January, March and June 2017.
33. The law says we should not investigate complaints about matters more than 12 months old unless there is a good reason to do so. I am satisfied that, if Ms X wanted to complain about the result of these meetings, she could have complained to the Ombudsman sooner. Ms X had access to a solicitor for advice and a formal complaint to the Council would have resulted in a referral to us.

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Investigator's decision on behalf of the Ombudsman