Summary: Ms Y complained about the Council’s decision to recall £1250 in direct payments she received for her son B who is a child in need. The Council also failed to provide the extra direct payments it had agreed. This caused stress to the family at an already difficult time. We found the Council was at fault for not providing the extra direct payments and it has agreed to apologise to the family.

The complaint

1. The complainant, Ms Y, complains that the Council:

• Made a decision to recall £1250 in direct payments (DP’s) she received for her son B who is a child in need.
• Caused her to have to go through a stressful appeals process
• Delayed the appeals process and failed to communicate.
• Failed to provide the agreed extra funds for B’s personal care

2. Ms Y says shortly before the Council made its decision; B’s father passed away. She said the Council’s actions added stress to the family at a difficult time.

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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 cannot question whether an organisation’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. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. If we are satisfied with an organisation’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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I spoke with Ms Y about her complaint. I considered all the information provided by Ms Y and the Council.
9. Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making my final decision.

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What I found

10. Section 17 of the Children Act 1989 says a disabled child is a ‘child in need’. This means councils have a legal duty to safeguard them and promote their welfare and upbringing by their families by “providing a range and level of services appropriate to” their needs. They can provide services directly, indirectly or by making direct payments to a person responsible for the child.
11. The Councils guidance says decisions about what resources are made to children in need is made by the disabled children’s social care child in need resources panel. This panel is made up of professionals from health, education, social care and voluntary sector partners.
12. Once a child’s needs have been assessed and they are confirmed as being eligible for additional support due to complex or critical disability, the Council will decide how much money they can receive through direct payments. Direct payments are used to arrange and manage a child’s care. This could include:

• Employing a carer who does not live at the same address as the individual
• Working with agencies that can provide different support such as developing social skills
• Paying for activities that directly contribute to achieving the goals of a child
• Paying for short breaks or respite care
• Special transport.

13. Changes in need and changes to packages of care will be dealt with through regular reviews of the child’s support plan and a re-assessment where necessary. The Council only allows a build-up of 7 weeks of direct payment funds. It automatically redeems funds that are over this entitlement.

Changes in legislation during the Covid-19 pandemic

14. During the COVID-19 pandemic, the guidance was updated to allow flexibility for those receiving direct payments. The guidance says audit processes should be adapted to reduce burdens and allow flexibility including, for example, to enable people receiving payments to carry forward funds to the next financial year.

The Councils appeals process for community resources panel

15. The aim of the appeals process is to give parent carers or their representatives an opportunity to make representations about the decision to award direct payments and whether any further information is needed to inform a decision.
16. There are three stages to the appeals process. A decision is made which is communicated to the family by letter or email within a week. It gives people exactly 3 months from the date of the panel to appeal the outcome. A panel is held every fortnight and it is expected that when an appeal is received, it is dealt with at the next available panel.

What did happen?

17. B is a child in need because he has a disability. The Council have been making direct payments to provide for his care arrangements.
18. A Council officer contacted Ms Y in May 2021 to arrange to start a routine re-assessment of her and B’s situation.
19. Ms Y told the Council on 8 June 2021, B’s father had passed away on the 3 June 2021.
20. The Council confirmed to Ms Y in the same month, that as she had built up an excess of funds of more than 7 weeks, it had requested £1250 be paid back. It said it would leave 7 weeks’ worth of funds in the account. Ms Y requested the funds were returned. She said the money had built up because of not being able to attend activities because of Covid-19. She said the extra funds would help with activities for B and distract him from the loss of his father. She asked the Council to give her some flexibility to respond to B’s needs.
21. The Council agreed to further discuss support needs with Ms Y. It said it would request urgent approval through the resource panel to look at immediate additional support needs.
22. The Councils notes state Ms Y spoke with an occupational therapist in June 2021. Ms Y said B’s father use to help B with personal care. She said she thought about getting a male carer to support B with this.
23. In the same month, the resource panel agreed to continue the current package of support at 20 hours per month and 2 overnights. It said it would leave 7 weeks surplus money in the account to cover the summer school holidays.
24. The Council’s notes state on 30 June 2021, it would need to reassess B’s needs as circumstances had changed.
25. Ms Y contacted the Council in July 2021. She asked it to carry out an early help assessment to look at the change in her family circumstances and present the case back to the panel. The aim of the Council’s early help assessment is to work consensually with families to share strengths and difficulties. Wherever possible, the needs of the children and families will be met by universal services.
26. The Council officer attended a meeting with Ms Y and B’s school in the same month, to complete the early help assessment.
27. The resource panel considered the early help assessment, carers assessment and Ms Y’s appeal letter in August 2021. The panel agreed to the continuation of 20 hours per month and 2 overnights per month. It also agreed to an extra 1.5 hours during the week and 6 extra hours every 4 weeks for personal care to commence on 9 August 2021 for a 6-month period. The panel declined Ms Y’s request for the previous funds to be added. It said the package now reflected B’s needs.
28. The Council called Ms Y the following day to advise her of the panel outcome. It also sent a letter.
29. Ms Y emailed the Council on 9 January 2022. She attached an appeal letter dated 19 July 2021 and said it was her third stage appeal. She said she was still awaiting a detailed response from the stage two appeal last September.
30. In February 2022, the Council officer made Ms Y aware that as the additional personal care payments agreed in August was for 6 months, the case would have to go back to the resource panel to review the support package in place.
31. Ms Y made the Council officer aware the agreed extra personal care direct payments had not been paid. She also said the money the Council said it would reclaim in June 2021, had not been reclaimed.
32. The Council called Ms Y. It apologised for the error with the direct payments and agreed to pay the amount that should have been paid. It said it will update B’s early help assessment for the resource panel.
33. In April 2022, the resource panel agreed to the same care package as it had in August 2021. But it said the finances that were agreed to be recalled from the account in 2021 had not been recalled and was to be used as part of the continuing package. It apologised to Ms Y and B for the lack of clarity in August from the panel and for the delay in processing the new package.

Analysis

34. The resource panel agreed in April 2022 that the funds that were due to be recalled in 2021 had not been because of an administrative error. The Council’s policy allows a build-up of 7 weeks of direct payment funds. It automatically redeems funds that are over this limit. I therefore cannot criticise the Council for requesting the built-up funds. It was, however, fault that these funds were not recalled. The Council said the money could be used as part of the continuing package, so although there was fault this has not led to an injustice.
35. The Council’s policy says changes in need and packages of care will be dealt with through regular reviews of the child’s support plan and a re-assessment where necessary. In this case, the Council were aware on 8 June 2021 that’s B’s father had passed away. The Council reassessed B’s needs in July 2021, when Ms Y requested an early help assessment. This was considered at the August 2021 resource panel who agreed to additional support. I do not find fault with how the Council reviewed B’s care packaged and agreed additional funds.
36. The Council failed to pay Ms Y for the additional personal care it had agreed to in August 2021. This is fault. Ms Y made the Council aware in March 2022 and it apologised. It has now backdated the direct payments to August 2021. Despite remedying the financial loss, it caused an injustice to Ms Y. This is because the Council were aware in June 2021 that B’s father use to help B with personal care and that Ms Y was considering getting a male carer. During this time, Ms Y had to continue to care for B’s needs during a difficult time, without the benefit of the additional funding.
37. Ms Y sent the Council an appeal letter dated 19 July 2021. This email was not picked up by the Council until April 2022. The Council said the email was sent to the wrong email address. It said the correct process to follow is detailed in the paperwork sent to Ms Y. I cannot criticise the Council for delay in progressing the appeal process as they did not receive the appeal letter. Also, the Council told us the appeal letter Ms Y sent it was the same one considered by the panel in August 2021. Therefore, this would not have made a difference to the outcome. From the evidence I have seen, I do not consider that preparing one letter demonstrates a stressful appeals process, although I acknowledge this was all happening for Ms Y at a difficult time.

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Agreed action

38. To remedy the injustice caused by fault, within one month of the date of my final decision, the Council has agreed to apologise to Ms Y. The Council should provide evidence that it has followed the recommendation.

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Final decision

39. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman