London Borough of Brent (20 008 715)

Category : Children's care services > Other

Decision : Upheld

Decision date : 02 Jun 2021

The Ombudsman's final decision:

Summary: Ms B complained about the rate of direct payments she received for her disabled daughter. She said she could not purchase sufficient care to meet her needs and the payment did not recognise the complexity of those needs. She says she was forced to give up direct payments to get a suitable care package. The Council was at fault in failing to investigate the complaint under the statutory complaints procedure and Ms B was put to time and trouble in pursuing the complaint with the Ombudsman. The Council has agreed to start a statutory stage 2 investigation into the complaint and make a payment to Ms B in recognition of her time and trouble.

The complaint

  1. Ms B complained about the rate of direct payments she received for her disabled daughter. She said she could not purchase sufficient care to meet her needs and that the payment did not recognise the complexity of those needs. She says this put her daughter at risk and she was forced to give up direct payments in order to get a care package suitable for her needs.
  2. Ms B also says the Council was slow to respond and the lack of communication left her feeling alone, unsupported and distressed.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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 have considered the information provided by Ms B and spoken to her on the telephone. I have also considered information from the Council. I have referred to relevant guidance, which supports the Children Act 1989 and subsequent Acts.
  2. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

  1. The Children Act 1989 established the requirement for councils to have a formal representations procedure to deal with complaints about local authority functions under certain parts of the Act. Later Acts have added to the scope of the procedure by widening the areas which are included.
  2. The Children Act 1989 Representations Procedure (England) Regulations 2006 (‘the regulations’):
    • specify which functions under the various Acts are subject to the procedure;
    • state who can make a complaint;
    • set out the three-stage process: local resolution, investigation and review panel;
    • specify the involvement of an independent investigator at the investigation stage with oversight by an independent person;
    • establish the principle of the welfare of the child being paramount in any consideration of a complaint;
    • set out the circumstances in which a complaint should not be considered; and
    • specify the timescales for responses at the various stages.

Getting the best from complaints (2006)

  1. The statutory guidance, ‘Getting the best from complaints’, sets out which of a council’s children’s social care functions can be considered under the statutory complaints procedure. Generally, assessments and services provided in the following areas should be considered under the procedure:
      1. Child in need
      2. Looked after children
      3. Special Guardianship support
      4. Post-adoption support
  2. A complaint should normally complete all three stages within the timescale set out in the guidance.

Key facts

  1. Ms B has a child with disabilities who is subject to a Child in Need plan. In August 2020 she complained to the Council about her direct payments saying the hourly rate was insufficient and would not allow her to purchase the number of hours suggested in her child’s care package. She said the hourly rate took no account of the child’s needs and the complexity of her care.
  2. The Council considered the complaint under its corporate complaints procedure. It responded at stage 1 in September 2020. Ms B was dissatisfied with the response and escalated her complaint to stage 2. The Chief Executive responded in October 2020. Ms B remained unhappy and complained to the Ombudsman.

Analysis

  1. The Council has explained that it considered Ms B’s complaint under the corporate complaints procedure rather than the statutory complaints procedure because it considered the complaint was about the level of direct payments rather than anything to do with an assessment.
  2. Although the complaint was primarily about the rate of direct payments, Ms B said she could not purchase sufficient care to meet her child’s needs and that the payment did not recognise the complexity of those needs. The 2006 guidance states, “all functions of the local authority under Part 3 of the Children Act 1989 may form the subject of a complaint”. Part 3 includes provision of services for children in need.
  3. The guidance gives examples of things that may result in a complaint which would fall under the procedure including:
    • an unwelcome disputed decision;
    • quantity, frequency, change or cost of a service;
    • application of eligibility and assessment criteria;
    • the impact on a child or young person of the application of a local authority policy; and
    • assessment, care management and review.
  4. The guidance confirms that this is not an exhaustive list.
  5. The Council should have investigated Mrs B’s complaint under the statutory procedure. Its failure to do so was fault and caused Ms B a significant injustice. She was put to time and trouble in complaining to the Ombudsman and this has resulted in a delay in the complaint being considered by the Council under the proper process.

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Agreed action

  1. The Council has agreed to carry out a stage 2 investigation under the statutory complaints procedure.
  2. It has also agreed that, within one month, it will apologise to Ms B and pay her £200 to acknowledge the time, trouble and delay she has been put to.

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Final decision

  1. There is evidence of fault leading to injustice.
  2. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman

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