Summary: We find fault with the Council for failing to carry out all the agreed actions from a statutory complaint process. This caused Ms B and her daughter an injustice. The Council agrees actions to remedy the injustice.

The complaint

1. Ms B complains that following a stage three panel report the Council failed to carry out the agreed actions. She complains the Council:
• tried to prevent her complaint progressing to stage three;
• failed to pay the agreed social skills budget;
• failed to make reasonable adjustments for her; and
• failed to consider her time and inconvenience when calculating her financial redress.
2. Ms B says this caused her distress and inconvenience. She also had to pay to fund the social skills because the Council failed to put this in place.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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

6. I considered the information Ms B provided with her complaint. I made enquiries with the Council and considered its response along with the relevant law and guidance.
7. Ms B and the Council had the opportunity to comment on my draft decision. I carefully considered all the comments I received.

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What I found

Law and guidance

Statutory children’s services complaints

8. The Children Act 1989 established the requirement for councils to have a formal representations procedure to deal with complaints about local authority functions under Part 3 of the Act and some sections of Parts 4 and 5.
9. In 2006 guidance was issued to accompany the regulations ‘Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others’.
10. The handling and consideration of complaints under the Children Act 1989 consists of three stages:
• Stage 1: Staff at point of service delivery try to resolve the complaint.
• Stage 2: An investigating officer (IO) and an independent person (IP) investigate the complaint. The IO is responsible for the investigation and the IP ensures the process is open, transparent and fair.

Once the IO has finished the report, a senior manager should act as Adjudicating Officer (AO) and consider the complaints, the IO’s findings, conclusions, and recommendations, any report from the IP, and the complainant’s desired outcomes. The AO will prepare a response to the reports and should invite the complainant to an adjudication meeting, either before or after writing their adjudication.

• Stage 3: The complaint is considered by a review panel. The Panel must consist of three independent people.
3. Review Panels are designed to:
• listen to all parties;
• consider the adequacy of the stage 2 investigation;
• obtain any further information and advice that may help resolve the complaint to all parties’ satisfaction;
• focus on achieving resolution for the complainant by addressing his clearly defined complaints and desired outcomes;
• reach findings on each of the complaints being reviewed;
• make recommendations that provide practical remedies and creative solutions to complex situations;
• support local solutions where the opportunity for resolution between the complainant and the local authority exists;
• to identify any consequent injustice to the complainant where complaints are upheld, and to recommend appropriate redress; and
• recommend any service improvements for action by the authority.
4. The guidance makes it clear the provision of advocacy includes adults making a complaint about services to a child. It says the Council should also consider how to meet the varying needs of complainants.

The Equality Act 2010 and reasonable adjustments

13. The Equality Act 2010 protects people from discrimination arising from disability. Disability discrimination is when a person is treated less well or put at a disadvantage for a reason that relates to a disability in one of the situations set out in the Equality Act, one of those being when a person has contact with public bodies like a local council.
14. The Equality Act 2010 says changes or adjustments should be made to enable people to receive the same services as others, to ensure they are not disadvantaged.
15. The duty to make reasonable adjustments for disabled people is ‘anticipatory’. This means councils cannot wait until a disabled person wants to use its services but must think in advance about what disabled people with a range of impairments might reasonably need.
16. Councils are not required to do more than it is reasonable for them to do. What is reasonable depends on several factors.

What happened

17. In September 2019 Ms B applied for support for D.
18. The case was discussed at funding panel in October 2019.
19. In December 2019 Ms B complained to the Council. She said:
• There was a lack of support and communication from the children’s disability team.
• There were delays taking the case to panel.
• She was offered a support package in October 2019 but was not receiving it.
• She sourced her own social skills support and was having to fund this.
20. Ms B says the Council told her the case was due back at panel in December 2019. Ms B asked for the funding and payments to be backdated.
21. The Council responded at stage one of the statutory complaint process, but Ms B was not happy with the response and asked to progress to stage two.
22. Ms B met the Investigating Officer (IO) and Independent Person (IP) in February 2020.
23. The stage two investigation and adjudication upheld four complaints and partially upheld one. It made recommendations.
24. In June 2020 Ms B asked her for her complaint to progress to stage three because:
• The action plan created following stage two was not followed.
• The Council asked Mrs B to review the action plan but ignored her suggested amendments.
• The Council failed to adhere to the recommendations of the stage two report.
25. The stage three panel convened in September 2020. It agreed with the stage two investigation findings and recommendations. It made further recommendations.
26. Ms B remained unhappy with the Council and complained to the Ombudsman.

My findings

27. When a case has been considered through the statutory complaints procedure, we generally would not reinvestigate the substantive issues. The statutory procedure is designed to provide independence and detailed analysis of concerns raised. This means reinvestigation is neither necessary nor warranted unless there are serious and fundamental flaws in the way the case was investigated.
28. I do not have any concerns about the statutory complaint’s procedure. I have not reinvestigated the substantive issues. My investigation focussed on the issues Ms remained unhappy with.
29. I have summarised my findings under Ms B’s outstanding complaints.

The Council tried to prevent her complaint progressing to stage three

30. I do not find fault with the Council for the way it handled Ms B’s request to progress to stage three.
31. The stage two investigation made several recommendations. The Council asked Ms B to review and comment on the action plan associated with the stage two recommendations. It is not fault for the Council to seek to fully understand the outstanding complaints before progressing to stage three.

The Council failed to pay the agreed social skills budget

32. I find fault with the Council for failing to pay for the social skills sessions agreed by the funding panel in October 2019.
33. The Council agreed to fund ice skating lessons and social skills sessions for D.
34. In response to my enquiries the Council said the funding started in December 2019 and Ms B was not due any backdated payment. It provided evidence it paid Ms B for the ice skating lessons.
35. It said there is no evidence D received the social skills sessions offered by the Council.
36. The stage two investigation found fault with the way the Council handled Ms B’s application for funding. It said:

“I conclude that the Local Authority was right to recognise Ms B was entitled to compensation for the money she had already spent but an alternative, and more flexible, method of making the additional payment should have been considered as Ms B was left out of pocket…”.

37. The stage two investigation found the Council had incorrectly calculated the social skills budget. It found the Council mistakenly requested £220.00. This was the amount needed for 10 holiday sessions, not the agreed 39 sessions.
38. It is also unclear why the Council did not backdate the payment to October 2019 when it first took the application to the panel. The Council said it was because of change in social skills session provider. But in the stage two investigation it said it made a mistake on the application form and the panel asked for it to be amended and re submitted.
39. The Council said it asked Ms B for evidence to support her claim she self-funded the social skills sessions, but she failed to provide anything.
40. Ms B says she had to fund the social skills sessions herself and it caused her distress trying to navigate her way through a confusing process. The way the Council handled the application and communicated with Ms B about the matter was confusing.
41. The Council should pay Ms B the money it owes for the social skills sessions agreed from October 2019. Ms B should provide evidence of the sessions she paid for to enable the Council to reimburse her the cost.
42. The Council should also review the ongoing needs for social skills sessions for D and decide about funding. It should be able to evidence its decision making.

The Council failed to make reasonable adjustments and failed to implement the stage three panel recommendations in relation to advocacy support for Ms B

43. I find fault with the Council for failing to understand Ms B’s needs and make reasonable adjustments.
44. The Council said it provided reasonable adjustments for Ms B “once the specific details of her support needs were known”.
45. Both the stage two investigator and stage three panel commented on the Council’s response to Ms B’s needs and the reasonable adjustments. The stage two report said the way Ms B’s disability was recorded in the Council’s records was not consistent and created confusion. It also said there was a gap in the teams understanding of her needs and disability. The investigating officer said:

“I suggested it would be a reasonable adjustment under the Equality Act 2010 to provide an advocate for Ms B but no provision was made during the stage two process”.

46. The stage three panel chair said the week before the meeting Ms B asked if the meeting could be put back to enable her medication to take effect before the meeting. She said this would have enabled her to take part in the meeting better. The Council did not accommodate this request. In relation to this the panel said:

“… panel members shared their disappointment with this decision, believing that altering the time of meetings to meet medical needs of service users should be seen as a reasonable adjustment”.

47. The Council says the panel chair did not explain the reason for the request to change the time of the meeting. So it was not aware it was a reasonable adjustment request.
48. The panel heard that Ms B’s distrust of children’s services meant she was not prepared to engage with a new social worker. But it said she appeared able to do this with the support of an advocate.
49. The panel recommended an advocacy referral for Ms B to be “supported in her future dealings with Children’s Services and the All Age Disability Service”. It said the Council should ensure the funding for advocacy was made available.
50. Ms B understood this to mean she would have an advocate for all her future dealings with children’s services. But the Council interpreted this recommendation differently. It said the advocacy funding was only for the complaint process. In an email sent to Ms B’s advocate in December 2020 it said:

“I believe that any other reference made during the recent stage 3 regarding advocacy was pertaining to support during the complaints process. I apologise if this was not clear enough… please read 'future dealings' as support during complaints process”.

51. The Council agreed to fund the advocate for the duration of the complaint. It interpreted the recommendation as for complaint process only. I do not interpret it as such. It says “future dealings” it does not specify this is only for complaints.
52. The Council did not turn its mind to understanding why the advocacy was needed. It should have sought to understand Ms B’s needs and what she needed the advocacy for.
53. The Council’s response is further evidence of its failure to fully understand Ms B’s needs. It failed to agree reasonable adjustments to assist her communication with the Council across all its involvement, not just complaint handling.
54. The Council does not have to agree all the adjustments that may be requested, only those that are reasonable for it to do. But it should be able to evidence how it considered the requests and reached its decisions.
55. Throughout its dealings with Ms B and its responses to my investigation it did not demonstrate an understanding of Ms B’s needs and how it fully explored these with her to agree reasonable adjustments.
56. This fault cause Ms B an injustice. She suffered distress throughout the period she was dealing with the Council about the support for D and the complaint process. If the Council does not take action the injustice will be ongoing.

The Council failed to carry out the actions in the plan it produced following the statutory complaint process

57. Ms B complained the Council failed to carry out the actions in the plan. The plan combined the recommendations from the stage two and three reports.
58. I reviewed the plan and there are several actions relevant to this complaint that were not completed. These are:

A referral for advocacy for D

59. I find fault with the Council failing to provide an advocate for D.
60. The stage three panel said D needed an advocate in her own right. It said it was “…necessary if she is to be able to also play a proper part in planning about her… officers reassured her (Ms B) that D’s preferences would be sought and listened to in choosing the right advocate”.
61. The Council said it made an advocate referral for D but after the first appointment Ms B declined any further support. But in two subsequent emails sent to the Council by Ms B’s advocate (October and November 2019) she asked for an advocacy referral for D.
62. The Council failed to act on the further requests from Ms B about D’s advocacy.
63. This caused D an injustice. She missed the opportunity to have an advocate to enable her to participate in planning about her needs.

Agree a date for a Child in Need review meeting

64. I find fault with the Council for failing to complete this action.
65. The stage three panel said the meeting should involve Ms B, D, both advocates and professionals needed to “find solutions to D’s needs, especially with respect to social skills training”.
66. It said it tried to engage with Ms B about the Child in Need plan, but she said she would not work with a social worker.
67. Ms B may have initially not consented to the Child in Need process but in November 2020 her advocate emailed the Council. She said:

“… Ms B has had some time to reflect and believed it would be better for D if she remains on the (Child in Need) plan”.

68. Ms B did want support from the Council for D. The stage three panel pointed out how her mistrust of children’s services contributed to her decisions about its involvement.
69. The Council should have been more sensitive to this in its communication with Ms B. The advocacy and communication issues also affected Ms B’s willingness to work with the Council.
70. The fact the panel said both Ms B and D should have an advocate present for the meeting supports Ms B’s view the advocacy finding extended beyond the complaint process.
71. The failure to hold the meeting caused Ms B further distress. This is injustice.

Review of advocacy commissioning

72. The stage three panel said:

“The commissioning of advocacy should be reviewed to ensure existing gaps are filled and that advocacy is available for those who request support to access services and support with the complaints process. There should be much clearer information for complainants about their entitlement and access to advocacy”.

73. The Council said the retender for advocacy was delayed until March 2021. I am concerned the Council misinterpreted this recommendation. I have seen reference to the advocacy for the complaints process but not for accessing other Council services.
74. The Council does not have a reasonable adjustments policy. This complaint highlights a lack of understanding and process for identifying, considering and implementing reasonable adjustments for those accessing services and support.
75. Following our investigation the Council said it is committed to improving the way it identifies and provides reasonable adjustments for people using its services. We welcome the Council’s willingness to learn from this complaint and take action to prevent further faults.

Agreed action

76. Within one month of my final decision the Council agrees to:
• Pay Ms B the cost of the 39 social skills sessions for D, as agreed by panel in October 2019. Ms B should provide the Council with evidence of the money she paid.
• Pay Ms B £600 to recognise the distress, time and trouble it caused because of the faults identified in this statement. The Council can deduct any distress payments already made to Ms B.
• Pay D £200 to recognise the distress it caused by its failure to refer her for advocacy support. Review D’s need for an advocate.
• Review D’s current need for social skills sessions and consider whether it should fund these.
• The Council should ensure it fully understands all Ms B’s needs. It should consider her requests and what it can reasonably do. If it cannot accommodate any of Ms B’s requests it should be able to explain why. It should then ensure it makes the agreed reasonable adjustments for Ms B across all its services, not just complaint handling.
77. Within three months of my final decision the Council agrees to:
• Consider how it will ensure it meets its duties for reasonable adjustments under The Equality Act 2010. It should consider whether it needs a separate policy or procedure to achieve this.
• Provide evidence it has completed the action to review its commissioning of advocacy.
• Provide evidence the Autism awareness staff training listed in the action plan has been completed.
• Share the learning from this complaint across relevant teams to raise awareness of reasonable adjustments and understanding the needs of those using its services.

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Final decision

78. I find fault with the Council causing injustice.

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Parts of the complaint that I did not investigate

79. I did not investigate Ms B’s complaint about the advocacy support the Council offered Ms B after the statutory complaint process subject of this complaint. This part of the complaint is premature as it has not finished the Council’s complaint process. Ms B can bring this complaint to the Ombudsman if she is unhappy with the Councils response. We will consider whether we can, and should, investigate.

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Investigator's decision on behalf of the Ombudsman