Summary: delay by the Council arranging overnight respite had a severe and prolonged impact on Ms M and her son B. The Council accepted the findings and recommendations of an independent investigator and complaint review panel and offered a payment to acknowledge its faults. I consider this a satisfactory outcome.

The complaint

1. Ms M complains about the lack of support from the Council to care for her son, B. In particular, Ms M complains about delays arranging overnight respite care. Ms M complained to the Council and is unhappy with the Council’s response.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have considered:
• information provided by Ms M;
• information provided by the Council, including its response to her complaint at all three stages of the Children Act complaints process.
5. I invited Ms M and the Council to comment on my draft decision.

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What I found

6. Ms M’s son, B, has Autism and a learning disability. He is a pupil at a special school and has an Education, Health and Care Plan maintained by the Council. Ms M is B’s sole carer. She has no family support.
7. Ms M has asked the Council for support on a number of occasions since 2011 as she has found B’s behaviour difficult to cope with on her own. Universal and targeted services have provided support.
8. In May 2015, B’s school made a referral to Children’s Social Care for additional support for Ms M. The school was advised to make a referral to the children with complex health and disabilities team. The school did not make the referral and the Council did not follow this up.
9. In November 2016, a worker who supported Ms M with B’s behaviour raised concerns for Ms M’s wellbeing. The Council undertook a child and family assessment. The assessment concluded in January 2017 that B was eligible for short breaks. The Council identified a short breaks foster carer for overnight respite, but this was never arranged. It appears that disagreements within the Council got in the way.
10. In September 2018, B was transferred to the children with complex health and disabilities team. The team began an assessment in January 2019 which identified Ms M and B’s need for support and overnight respite. The Council agreed weekly overnight breaks, although it was unable to arrange breaks until February 2020, and then only fortnightly.

The Council’s response to Ms M’s complaint

11. Ms M complained to the Council about the lack of support in November 2018.
12. The Council considered Ms M’s complaint at all three stages of the Children Act complaints process. This is a formal procedure, set out in law, which councils must follow to investigate certain types of complaint. It involves:
• a written response from the Council (Stage 1);
• the appointment of an independent investigator to prepare a report (Stage 2); and, if the person making the complaint requests
• an independent panel to consider their representations (Stage 3).
13. The Council responded at the first stage of the Children Act complaints process in November 2018, and April and August 2019. Ms M remained dissatisfied, so the Council appointed an investigator and independent person to consider her complaint at the second stage of the complaints process. The investigator produced a report in January 2020. A complaint review panel considered Ms M’s complaint at the third and final stage of the complaints process in January 2021.
14. Ms M remains dissatisfied and complained to the Ombudsman.

Consideration

15. When a council has investigated a complaint under the Children Act complaints process, the Ombudsman would not normally re-investigate it. We may consider whether a council has properly considered the findings and recommendations of the independent investigator and review panel, and any remedy the Council offers.
16. The independent investigator undertook a review of B’s case. He was critical of the Council’s failure to follow up the request for support made by B’s school in May 2015. He concluded there was sufficient information available to indicate that Children’s Social Care could have begun a Child and Family assessment earlier in 2016. He found the Child and Family assessment completed in January 2017 failed to consider Ms M’s needs as B’s carer. He was critical of the delay referring B’s case to the children with complex health and disabilities team.
17. The independent investigator concluded that even though community and home-based support had been provided, there was an unacceptable delay in implementing the agreed overnight respite since January 2017.
18. The independent investigator upheld four of Ms M’s six complaints and partially upheld two more. He recommended the Council apologise, arrange overnight respite and offer Ms M a payment to recognise the impact on her of the Council’s mistakes.
19. The Council accepted the independent investigator’s findings and recommendations. The Council apologised for its mistakes and produced an action plan to address the investigator’s recommendations. Overnight respite started in February 2020, although it was put on hold in March 2020 because of the pandemic. The Council offered Ms M a payment of £500.
20. Ms M remained dissatisfied and asked for her complaint to be considered by a review panel at the third and final stage of the complaints process. She was unhappy that overnight respite was still not provided. She wanted the partially upheld complaints to be reviewed. She thought the Council’s apology was insincere and its offer of £500 was inadequate.
21. At the panel hearing in January 2021, the Council explained the significant problems with Children’s Services that had been identified by an Ofsted inspection in 2018. Ofsted was particularly critical of services for disabled children. The newly appointed deputy director outlined the Council’s plans to tackle the problems. He apologised for the impact on Ms M and B.
22. The panel changed the finding of one complaint from ‘partially upheld’ to ‘upheld’ and recommended the Council reconsider the payment it offered Ms M, arrange weekly overnight respite and undertake a carer’s assessment.
23. The Council accepted the panel’s findings and recommendation in full. The director wrote to Ms M to apologise. He increased the payment offered to £1,000. Weekly overnight respite started in February 2021.
24. I am satisfied the independent investigator carried out a thorough and fair investigation. I agree with the findings and recommendations of the independent investigator and complaint review panel. I do not intend to investigate the complaint further myself.
25. Ms M remains dissatisfied. She would like a larger payment to recognise the impact on their lives of the overnight respite they have missed out on since January 2017 and the difficulties this has created. She explained that although respite started in February 2021, it has been shorter than planned because of capacity problems caused by the pandemic. Ms M described her dealings with the Council as a ‘battle’ to secure support. Ms M said she nearly gave up last year and asked the Council to take B into care: she was exhausted, drained and physically beaten. B is not very verbal. He can be violent; he will spit, nip, bite and try to push Ms M down the stairs. He has issues with sleep and needs constant supervision.
26. Ms M says the Council’s actions have affected her own and her son’s mental health and caused a breakdown down in their relationship. She says the Council has made her feel as though she is failing as a parent.

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Agreed action

27. The Ombudsman has published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Ms M and B, we may recommend the Council makes a symbolic payment to acknowledge the impact of the fault and any avoidable distress.
28. Our remedies are not intended to ‘punish’ councils for their mistakes and we do not award compensation in the way that a court might. We do not calculate a financial remedy based on the cost of a service when a service has not been provided. We consider the impact on the person instead. Claims of injury or harm to health are usually a matter for the Courts.
29. A remedy payment where the impact of the fault was avoidable distress is often a modest sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1,000 may be justified. Exceptionally, we may recommend more than this.
30. The Council decided Ms M and B needed weekly overnight respite in January 2017, but did not arrange it for four years. I do not underestimate the impact of this delay on Ms M and B. Regrettably, it is not possible to put them back in the position they would have been in if the fault by the Council had not occurred. I cannot ‘turn back the clock’. If Ms M had complained to us sooner, it might have been possible to put things right earlier. Nevertheless, fault by the Council has had a severe and prolonged impact on Ms M and B. I consider the payment of £1,000 offered by the Council is an appropriate symbolic payment to recognise the impact of the Council’s faults on them.

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Final decision

31. I have completed my investigation. Fault by the Council caused Ms M and B injustice. The Council accepted the findings and recommendations of the independent investigator and complaint review panel. The Council offered Ms M a payment of £1,000. I consider this an appropriate outcome.

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Investigator's decision on behalf of the Ombudsman