Summary: Mrs X complained the Council has failed to ensure her sons Y and Z receive short break provision in line with their assessed needs following a Stage 3 review panel. She also complained the Council offered her direct payments which were not sufficient to meet her sons’ needs. She said this matter caused her and her family stress and put her to unnecessary time and trouble. There is no fault in the Council’s actions.

The complaint

1. Mrs X complained the Council failed to arrange short break provision in line with her sons Y and Z’s assessed needs, following a Stage 3 review panel which took place in July 2019.
2. Mrs X also complained the Council offered her direct payments for Y and Z that were not sufficient to meet their needs.
3. Mrs X said this has led to Y and Z not getting access to a service they are entitled to, causing her and her family stress.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
5. 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)

Back to top

How I considered this complaint

6. I spoke with Mrs X and discussed her view of the complaint.
7. I made enquiries of the Council and considered the information it provided. This included email and letter correspondence shared between Mrs X and the Council and Y and Z’s children and families assessment.
8. I wrote to Mrs X and the Council with my draft decision and considered Mrs X’s comments before I made the final decision.

Back to top

What I found

Assessment of need

9. Local authorities have a duty under section 17 of the Children Act 1989 to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child’s needs. A disabled child is a child in need.
10. Local authorities undertake assessments of the needs of the child to determine which services to provide and what action to take.
11. If a parent carer of a child in need requests it, the local authority must assess whether the parent has support needs and, if so, what those needs are. This is known as a parent carer assessment. The local authority may combine the assessment with an assessment of the needs of the disabled child. The assessment must consider:
• whether the parent carer has needs for support in relation to the care which he or she provides or intends to provide;
• whether the disabled child cared for has needs for support;
• whether those needs could be satisfied (wholly or partly) by services which the authority may provide under section 17; and
• whether or not to provide those services.
12. In deciding on the level of needs a child and their family has and to help draw up the support plan and allocate a budget, the Council uses five bands, from ‘no additional support’ to ‘exceptional support’. The highest levels are:
• Substantial support - The child needs supervision and support throughout most of the day. This often includes 1:1 support or at times 2:1.
• Critical support - The child needs specialist support at the highest level on a continual basis (this may mean 2:1). The child has very complex needs or there are very high levels of risk to manage.

Statutory Children’s complaints procedure

13. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services.
14. Stage 1 requires the Council to informally resolve the complaint within 10 working days.
15. At Stage 2 of this procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation).
    The investigation should take no more than 65 working days to complete.
16. If a complainant is unhappy with the outcome of the Stage 2 investigation, they can ask for a Stage 3 complaint review panel. The panel is comprised of three people who have experience in social care but are independent of the Council. The panel should be held within 30 working days of receiving the escalation request and a final response delivered within 15 working days of the panel.

If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.

Children and families assessment

17. Disabled children have a right to an assessment under the Children Act 1989. If requested the Council will undertake an assessment of need, which is called a Children and Families Assessment.
18. When the Council receives a referral, a social worker will be allocated to undertake the assessment of need. Following this assessment, a decision will be made as to whether the child or young adult is eligible to receive a particular service.
    
    Direct Payments
19. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the care and support plan.
20. There are three main ways in which a personal budget can be administered:
• As a managed account held by the local authority with support provided in line with the person’s wishes;
• As a managed account held by a third party with support provided in line with the person’s wishes;
• As a direct payment.
21. Direct payments are cash payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They can provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The council has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do request direct payments, the council should support them to use and manage the payments properly.
22. The guidance says the council must be satisfied that the direct payment is being used to meet the care and support needs set out in the plan. Councils should have systems in place to proportionally monitor direct payment usage to ensure effective use of public money.

What happened

Background

23. Mrs X’s sons Y and Z are primary and nursery school aged. They have both been diagnosed with autism, as well as various other health issues and require a high level of attention and daily support.
24. In July 2018, Mrs X asked the Council for an assessment of need for Y and Z so they could access short break provision. The Council carried out a Child and Families Assessment (CAF) and found Y required substantial support and Z required critical support.
25. The Council allocated each child 3 hours of short break provision to be provided at the weekend during the daytime. The Council later increased this to 6 hours after further discussions between the Council and Mrs X.
26. A Council social worker visited the family at their home to discuss the support Y and Z could receive. The social worker also discussed Direct Payments (DP) with Mrs X. Mrs X told the Council the DP’s offered would not allow her to make best use of the short break provision and would not meet Y and Z’s needs as they required a “home from home,” environment.
27. Mrs X wrote to the Council to give her views on where Y and Z should receive short break provision. She also said she felt the Council had allocated an insufficient amount of money towards Y and Z’s care.
28. The Council offered Mrs X 3 hours per week DP’s for Y and Z to either access short break provision at a nearby respite centre or for the children to have a carer take them out in the community. Mrs X was unhappy with this offer and said the DP’s offered by the Council were not sufficient to meet Y and Z’s needs.
29. The Council and Mrs X later visited the respite centre and they agreed it was not suitable for the children. Mrs X advised she was unhappy with Y and Z’s support plans, stating that they were too general and did not clearly outline the children’s needs.

Mrs X’s complaint

30. On 6 December 2018, Mrs X made a formal complaint to the Council. She said the Council:
• failed to allocate a sufficient budget towards Y and Z’s assessed needs;
• issued support plans for Y and Z which were not detailed or specific enough; and
• took too long to provide Y and Z with appropriate short break provision.
31. The Council did not respond to Mrs X within 10 working days as required by law and Mrs X asked the Council to escalate the complaint to Stage 2 on 31 December 2018.
32. A Council appointed an investigation officer (IO) to carry out a Stage 2 investigation. The IO met and spoke with Mrs X, Y and Z’s social worker and reviewed case records and the assessments carried out for Y and Z.
33. The IO completed the Stage 2 investigation on 16 April 2019. The IO:
• upheld Mrs X’s complaint regarding the budget allocated to Y and Z;
• partially upheld Mrs X’s complaint regarding the specificity of Y and Z’s support plans; and
• partially upheld Mrs X’s complain regarding the length of time taken for the Council to source appropriate provision for Y and Z.
34. The IO acknowledged the length of time taken to conclude the complaint the process. The IO made several recommendations including telling the Council to provide its staff with training on drawing up effective support plans and to review the DP’s offered to families requiring highly skilled services for children.
35. Mrs X largely agreed with the outcome of the Stage 2 investigation but opted to escalate the complaint to Stage 3 as she was unhappy with the parts of the complaint which were partially upheld.
36. Mrs X attended a Stage 3 review panel which included the IO and several other panellists. The panel considered the Stage 2 investigation and the complaint points which were partially upheld.
37. Regarding the length of time taken to complete the process, the panel found there was evidence indicating the delay was partly caused by the Council and partially upheld the complaint. The panel recommended that the Council apologise and provide a financial award to Mrs X for the delay in responding to her complaint and in arranging services for Y and Z.
38. The Council wrote to Mrs X and acknowledged the delay in providing Y and Z with services appropriate to their needs. The Council made a payment of £450 to Mrs X and assured her it would arrange for social workers and Team Managers to receive the training outlined at the Stage 3 panel.
    The Council also confirmed it would complete its review of the DP’s scheme by March 2020.
39. The Council reviewed Y and Z’s support plans and noted that Mrs X was unhappy they had still not received a short break provision. It said, “Mrs X is worried that Y and Z will become socially isolated if they are not provided with the appropriate support now…the social worker understands that Mrs X would like a placement for Y and Z however there are none available at this time that meet parents and children’s needs.
40. Mrs X complained to the Ombudsman because she was unhappy the Council had not yet found short break provision for Y and Z.
41. The Council carried out a further review of Y and Z’s plans.
    The Council stated, “The Local Authority continue to offer DP’s for Y and Z and continue to look for the provision parents want…no placements are available at this time that meet Y and Z’s needs however the children are at no risk of harm and do regularly access specialist facilities in the community with the support of their parents.”
42. In the Council’s response to the Ombudsman’s enquiries, it provided a summary of over 14 respite centres it has approached to facilitate Y and Z’s short break provision. Most of the service providers it approached either did not have capacity or were unable to meet Y and Z’s needs. The Council said it struggled to find a service able to provide the required level of support due to a combination of lack of availability and the complexity of Y and Z’s needs.
43. The Council confirmed it carried out a review of its DP scheme in line with the Care and Support (Direct Payments) Regulations 2014 and Stage 3 panel recommendations. The Council found that the hourly rate offered for children’s services £10.76, was no longer sufficient for DP’s and increased it to £11.52.
    The Council has advised that DP’s continue to be available to Mrs X.

Findings

44. Mrs X remains unhappy the Council has failed to arrange appropriate short break provision for Y and Z following the Stage 3 panel. The recommendations made at the panel did not explicitly require the Council to find a respite provider for Y and Z, however, the Council has a duty to ensure the children’s assessed needs are met. Having reviewed the evidence, I can see the Council has made several attempts following the panel decision to find a suitable respite placement for Y and Z. However, the children’s high level of need and the lack of availability has meant the Council has been unsuccessful in finding a placement.
    I find no fault in the way the Council acted, and so I do not hold the Council responsible for what has happened.
45. Mrs X was not happy with the Council’s offer of DP’s as she did not consider them sufficient to meet Y and Z’s needs. The Council confirmed it followed the recommendations made by the Stage 3 panel and increased the level of DP’s it was offering Mrs X. There is no evidence that the adjusted payment would be insufficient for Y and Z’s needs and so I find no fault with the Council’s actions.

Back to top

Final decision

46. There is no fault in the Council’s actions. I have therefore completed the investigation.

Back to top

Investigator's decision on behalf of the Ombudsman