Summary: Mrs X complained the Council failed to offer an appropriate remedy after it upheld her complaint that it left her child without care and support for over three years. The Council is at fault. The Council upheld Mrs X’s complaint but the remedy offered does not reflect the level of injustice caused to Y. The Council has agreed to pay Mrs X £18,200 in recognition of the 3.5 years lost care provision, to be used for Y’s benefit. It will also pay Mrs X £1100 to recognise the distress caused to her and the time and trouble taken bringing her complaint.

The complaint

1. Mrs X complained that Together for Children, acting on behalf of the Council, upheld her complaint that it left her child without care and support for over three years, but the Council has not offered an appropriate remedy. She also says the Council did not have due regard to her human rights when it completed a Child in Need assessment in April 2019 without her knowledge or consent.
2. She says the errors have impacted on her child’s wellbeing, led to lost development and learning opportunities for her child and caused her financial hardship and distress. She wants the Council to increase its financial remedy to appropriate recognise the impact of the faults on her and her child.

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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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. We cannot find that an organisation has breached the Human Rights Act. However, we can find an organisation at fault for failing to take account of its duties under the Human Rights Act.
6. 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)
7. 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

8. I read Mrs X’s complaint and spoke with her about it on the phone.
9. I made enquiries of the Council and considered its response.
10. Mrs X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Legal and administrative background

Child in Need

11. The Children Act 1989 says children “in need” includes children who need councils to provide them with services to either maintain a reasonable standard of health and development, or to prevent them suffering further harm to their health and development.
12. The Act sets out a council’s duty to safeguard and promote the welfare of children within their area who are in need. The council has a duty to assess a child and offer services appropriate to the child’s needs.

Direct payments

13. A direct payment is a payment made to people to allow them to arrange their own services (or services for their child), rather than the Council arranging it for them.

Children’s statutory complaints procedure

14. There is a formal procedure, set out in law, which council must follow to investigate certain types of complaints. It involves three stages:
• Stage 1 - Local resolution by the Council.
• Stage 2 – an investigation by an independent investigator who will prepare a detailed report and findings. The investigation is overseen by an independent person to ensure its impartiality. The Council then issues an adjudication letter which sets out its response to the findings.
• Stage 3 – an independent panel to consider their outstanding issues.

The procedure allows for an early referral to us after Stage 2 has concluded, if the following conditions are met:

• The stage 2 has delivered a very robust report and all significant points of complaints have been upheld;
• The Council is providing a clear action plan;
• The Council agrees to meet the majority or all of the desired outcomes presented by the complainant regarding social services functions;
• The Council considers that further review by a stage 3 panel would not change the outcome; and
• The complainant agrees to the early referral.
4. When a council has investigated a complaint under the statutory complaints process, the Ombudsman would not normally re-investigate it. We may consider whether the council has properly considered the findings and recommendations of the independent investigator and review panel and any remedy the council offers.

What happened

16. Mrs X’s child, Y, has a health condition and Special Educational Needs. In July 2017, Y was primary school age. Mrs X requested an assessment for support for Y from the Council’s Children’s Social Care service. Together for Children (TfC) provided children’s social care services on behalf of the Council and accepted the referral for assessment.
17. In April 2018, TfC allocated the case to a social worker. The social worker completed an assessment and put a request to the Council’s resource panel for funding for 10 hours per week personal assistant (PA) support for Y, funded by a direct payment. This was to support Y with social and emotional development and to access the community independently from Mrs X. It was also to provide respite for Mrs X, who was home educating Y and also Y’s main carer.
18. The panel considered the request in July 2018 and accepted Y needed support, but recommended Y should trial direct support from a specific relevant organisation first, before it would consider agreeing a direct payment for a PA. The panel told the social worker of its decision, but the social worker left TfC in August 2018 without documenting this or communicating this decision to Mrs X or any TfC or Council colleagues.
19. In September 2018, TfC allocated Y a new social worker. This social worker said they could not rely on any previous assessment and would need to start the assessment process again. The stage 2 investigation found no evidence they did complete an assessment, but they agreed Y would benefit from the support of a PA. Mrs X says they agreed this would be for 10 hours a week.
20. In January 2019, the social worker referred Mrs X to an agency which could support her to employ PAs. The social worker told the agency the agreed support was for 6 hours a week. Mrs X told the agency this was not what the social worker had agreed. The agency said it could not support Mrs X to employ PAs until TfC clarified how many hours provision it had agreed.
21. Mrs X complained to the Council. The Council accepted her complaint at stage 1 of the Children’s statutory complaints procedure. She complained about poor communication and that, despite having requested social care support in July 2017, Y still had no support in place.
22. The Council upheld her complaint in February 2019. It confirmed Y was entitled to 10 hours a week PA support. It allocated them a new social worker and said the social worker would confirm the agreed 10 hours support with the agency, so the agency could support Mrs X to employ PAs.
23. The social worker did not confirm the agreed support hours with the agency. The Council says they completed a further assessment with Mrs X and Y, but accepts there is no evidence Mrs X consented or was given the opportunity to participate in this assessment. Mrs X says no assessment took place.
24. The agency contacted TfC in April and May to try and confirm Y’s agreed hours, but TfC did not respond.
25. In July 2019, Mrs X told the social worker she was struggling to recruit PA’s and could not access the agency’s support for this, as TfC has not confirmed the agreed hours with the agency. The social worker told Mrs X she had had ample time to recruit PA’s and if she did not find a PA within the next 6 weeks, they would withdraw Y’s support.
26. In September 2019, the agency contacted TfC again. It said that for 9 months, TfC had not responded to its requests for clarification on what hours Y was entitled to. Because of this, it had been unable to provide support for Mrs X to recruit PAs. It said due to TfC’s lack of response, it would close the case. TfC did not respond, and so the agency closed the case.
27. In November 2019, the social worker closed Y’s case. The record said they had closed the case as Mrs X had had ample time to recruit PAs for Y but had not done so.
28. Mrs X complained to the Council. The Council accepted her complaint under the Children’s Statutory Complaints procedure. The independent stage two investigation upheld all the substantive points of her complaint. It found:
• There was delay in starting an assessment between July 2017 and April 2018.
• Evidence of poor communication by TfC with both Mrs X and the agency.
• Significant errors in the assessment process, and no evidence Mrs X was aware of or consented to the assessment in April 2019.
• TfC was wrong to close the case in November 2019, as Mrs X had been unable to recruit PA’s due to TfC’s lack of clarity and por communication.

It recommended the Council take immediate action to establish if Y still needed PA support, and if so, to put this in place as soon as possible. It also recommended the Council apologise to Mrs X for all the identified faults and provide a suitable financial remedy for the injustice caused.

29. The Council accepted the investigation findings in July 2020. It formally apologised to her for all the upheld complaints. It offered:
• £1100 to Mrs X for prolonged and avoidable distress and the time and trouble taken to bring her complaint.
• £500 as a gesture of goodwill in recognition of the hardship the family had endured because of the lost provision.

Mrs X was dissatisfied with this remedy offer. She told the Council it did not reflect the impact the lost service provision had had on her and her child. She said her child had missed out on over three years of life experiences and learning opportunities, and the lack of support had negatively affected her own health, causing her burnout and leading to a breakdown.

30. The Council reviewed the remedy offer but said it would not increase it. Rather than proceed to Stage 3 of the statutory procedure, the Council and Mrs X agreed to an early referral to us to consider the appropriateness of the remedy offered.
31. Mrs X brought the complaint to us in September 2020.
32. The Council started a new assessment of Y’s needs during the Autumn 2020 and Y began receiving 10 hours per week of PA support in January 2021.
33. In its response to our enquiries, the Council revised its remedy offer and offered Mrs X and Y:
• £1100 for prolonged avoidable distress and time and trouble.
• £1750 in recognition of the Y’s lost care provision, calculated at £500 per year over 3.5 years.

I have considered the appropriateness of this revised offer below.

34. The Council said the social worker who completed the assessment in April 2019 recalled receiving verbal consent from Mrs X. However, in the absence of any written evidence of this, it had upheld her complaint. It said it had taken action to improve its services following the complaint and now ensures consent is received and recorded before assessments begin. It also said it has completed staff training and introduced quality checks. It said as the social worker recalled receiving verbal consent, it did not consider they had breached Mrs X’s privacy or human rights.
35. In the draft version of this decision, I recommended the Council review its contractual and quality monitoring arrangements with Together for Children to ensure it had sufficient oversight of the services it was providing on the Council’s behalf and its handling of complaints. In response, the Council said although it accepted that at the time of Ms X’s complaint the monitoring arrangements were not sufficient, it now has more robust monitoring processes in place. The Council provided details of these, which include:
• regular performance and quality monitoring overseen by the chief executive and the Council’s children’s services scrutiny committee;
• a programme of internal audit and assurance work, including a recent audit of the Together for Children complaints process; and
• external audit and ongoing quarterly monitoring by Ofsted.

I considered the information provided and am satisfied the Council now has sufficient quality monitoring arrangements in place, which will continue to be monitored by Ofsted. Because of this, I have removed the recommendation from this final decision statement.

Analysis

36. The Council upheld all the significant points of Mrs X’s complaint at stage 2 of the statutory complaints procedure. I have reviewed the investigation report and am satisfied the investigation was sufficiently robust. The Council agreed to the recommendations related to ongoing service provision for Y. Mrs X and the Council agreed to refer the complaint to us early to review whether the Council had offered an appropriate financial remedy for the injustice caused to her and Y. This fulfils the criteria for an early referral to the Ombudsman.
37. The Council has accepted it was at fault. Because of Council fault, Y missed out on 3.5 years of social care support. This had a significant impact on Y’s social and emotional development because:
• Y has health conditions and special educational needs.
• The need was identified but not met for such a prolonged period.
• Mrs X educated Y at home, so the opportunity for Y to have social interaction away from her was already reduced.
• The period included the key transition year between primary and secondary education.
38. Mrs X missed out on 3.5 years of respite support. During this period Mrs X educated Y at home and was also their main carer. She had very limited opportunities for respite from these roles. The lack of respite from these responsibilities led to Mrs X experiencing substantial health issues herself. Mrs X spent a significant amount of time chasing TfC and the Council trying to get the provision in place for Y. This caused her considerable and prolonged distress over 3.5 years.
39. I have considered our Guidance on Remedies and reviewed similar Ombudsman cases. I consider Y should receive £100 per week to remedy the significant injustice caused to them by the loss of provision over the 3.5 years it took the Council to get the assessed provision of 10 hours per week PA support in place.
40. I consider the financial remedy offered to Mrs X of £1100 for distress and time and trouble to be in line with our guidance and an appropriate offer for the injustice caused to her.
41. Mrs X says the Council did not consider her privacy or have due regard to her human rights when it completed an assessment without her knowledge or consent in April 2019. The Council said the social worker recalled gaining verbal consent. As I was not present, I cannot know what happened, and so cannot make a finding on whether the Council had due regard to her human rights. However, as there is no record consent was gained, the Council upheld this part of the complaint. I agree that the failure to appropriately record Mrs X’s consent to the assessment is fault. The Council has apologised to Mrs X for this and taken actions to improve its services. These are appropriate actions for the injustice caused to Mrs X and to prevent recurrence of the fault.

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Agreed action

42. Within one month of the final decision, the Council will:
• pay Mrs X £18,200 in recognition of the injustice cause to Y by 3.5 years of lost service provision. Mrs X should use this money for Y’s benefit, to ensure they have opportunities and additional support to progress their social and emotional development and to make up for the lost provision as much as able.
• Pay Mrs X £1100 in recognition of the injustice caused to her by 3.5 years of lost respite from her caring responsibilities, the distress caused to her and the time and trouble she has gone to bringing her complaint.

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Final decision

43. I have completed my investigation. I have found fault and the Council has agreed action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman