The Investigation

The complaint

1. Mr X complains on behalf of his wife, Mrs X, that the Council failed to provide respite provision for their disabled child. Mr X says the Council did not try hard enough to obtain respite provision.

2. Mr X says the Council’s actions have caused the family avoidable distress and upset. He would like the Council to apologise and provide a financial remedy to recognise the distress caused.

Legal and administrative background

The Ombudsman’s role

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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. 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 “Principles of Good Administrative Practice during COVID-19”.

5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

The Children Act 1989

6. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.

7. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in section 2.

8. Services which can be provided under section 2 CSDPA include:

• practical assistance in the home including home based short breaks / respite care;

• recreational / educational facilities including community based short breaks; and

• travel and other assistance.

9. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly. Statutory guidance published in 2018, (Working Together to Safeguard Children), sets out the legislative requirements placed on individual services.

Assessment of need

10. The expectation of ‘Working Together to Safeguard Children’ is that an assessment which identifies significant needs will generally lead to the provision of services, but it is not the case that there is a duty to meet every assessed need. Whether a service is required is dependent on the nature and extent of the need assessed and the consequences of not providing a service. Councils may use eligibility criteria and take into account their available resources when providing services under section 17 of the Children Act.

11. If a council is satisfied it is ‘necessary’ to provide support services under section 2 of the CSDPA then services must be provided regardless of the council’s resources.

Special educational needs

12. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.

13. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

Equality Act

14. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.

15. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.

16. The ‘protected characteristics’ referred to in the Act are:

• age,

• disability,

• gender reassignment,

• marriage and civil partnership,

• pregnancy and maternity,

• race,

• religion or belief,

• sex, and

• sexual orientation

17. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.

Human Rights

18. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to, including respect for private and family life.

19. The Act requires all local authorities and other bodies carrying out public functions to respect and protect individual’s rights.

20. Not all rights operate in the same way. Instead, they break down into three separate categories:

• age,

• disability,

• gender reassignment,

• marriage and civil partnership,

• pregnancy and maternity,

• race,

• religion or belief,

• sex, and

• sexual orientation.

• Absolute rights: those which cannot be taken away under any circumstances

• Limited rights: those that can be taken away in certain circumstances

• Qualified rights: those rights where interference may be justified to protect the rights of others or wider public interest. Any interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.

21. Our remit does not extend to making decisions on whether a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But we can decide whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

22. In practical terms, councils will often be able to show they have complied with the Human Rights Act if they can show:

• They have considered the impact their decisions will have on the individuals affected; and

• There is a process for decisions to be challenged by a review or appeal.

How we considered this complaint

23. We have produced this report after examining relevant documents from the Council and speaking to the complainant and her representative.

24. Mr and Mrs X and the Council have had the opportunity to comment on a draft of this report. We have considered their comments before finalising this report.

25. Under our information sharing agreement, we will share the final report with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

What we found

Background

26. Mr and Mrs X lived with their child, Child Y. Child Y has a diagnosis of autism spectrum condition and other medical conditions which means they can present challenging behaviours. Mrs X also has a diagnosis of autism spectrum condition and other medical conditions.

27. In March 2019, Child Y was 10 years old. The Council started a Children and Families assessment. At around the same time, the Council initiated a Child in Need (CIN) Plan for Child Y.

28. In September 2019, as part of the CIN Plan, the Council identified a need for overnight respite care for Child Y.

29. In December 2019, Child Y was made the subject of a Child Protection Plan. At about this time, Child Y attended an introductory visit at a third-party respite provider, Provider A.

30. Child Y attended their first respite care visit with Provider A in January 2020. At about this time, Mrs X told the Council she was due to attend hospital for surgery sometime between February and May 2020.

What happened

31. This chronology includes key events in this case and does not cover everything that happened.

32. On 11 March 2020, the Council agreed to provide ongoing respite care for Child Y, plus transport. It confirmed it would provide one overnight stay per week with Provider A.

33. On 16 April 2020, the Council agreed to provide two additional nights respite for Child Y at the time of Mrs Y’s surgery.

34. Provider A ended its respite care package for Child Y on 28 April 2020 following an incident involving Child Y.

35. The Council identified another service provider, Provider B, as an organisation who could potentially provide community support to Mrs X and Child Y.

36. Mrs X’s surgery was postponed and did not go ahead in the timeframe initially scheduled between February and May 2020.

37. On 1 July 2020, the Council agreed to increase the amount of overnight respite provision to 74 nights per year. This consisted of one weekend per month, two overnight stays per week during school holidays, and a further 12 nights to be used flexibly over the course of the year. The Council agreed to provide the respite package via another service provider, Provider C.

38. Provider C is a specialist service which provides short breaks and longer-term placements for children and young people with a disability. In July 2020, Provider C’s respite provision was suspended due to COVID-19 restrictions.

39. Mrs X says she was told Provider C was available for respite care in September 2020. Provider C told the Council it was open to children in the local authority’s care but not to children attending respite visits due to the pandemic. As an alternative, the Council identified that Provider B could provide support to Mrs X and Child Y at home, as well as community support.

40. The Council says it is Provider B’s policy to carry out a risk assessment before offering a placement. It says Mr and Mrs X’s concerns about COVID-19 frustrated a meeting with the provider from taking place. Mr and Mrs X say they declined provision from Provider B because they wanted Child Y to have access to the community rather than support at home. They say the support offered by Provider B would not have provided the respite that Mrs X needed due to her medical conditions. In addition, Mrs X said she did not want the change of having other people in her home due to her autism. Mr and Mrs X also said they had concerns about the level of care and support Provider B was able to provide.

41. In October 2020, the Council said it could provide carer support to Mrs X at home after her surgery. The Council says Mrs X declined the offer of carers going into her home. The Council says it looked into the possibility of Mrs X accessing a service after her discharge from hospital so Child Y could remain at home. However, the Council says it has no records regarding this.

42. On 29 October 2020, the Council told Mrs X that despite its efforts, it was unable to source any respite provision outside the family home for regular respite, and for support with her recovery following her planned surgery. The Council said it does not own any respite provision and relies on private sector providers. It said all private sector respite care providers advised they were unable to take new clients at that time. The Council said it could offer a direct payment so Mrs X could commission her own respite but acknowledged this option did not offer the same level of respite as requested. The Council apologised for its inability to organise respite provision but stated COVID-19 restrictions meant it was not possible to commission respite outside the home at that time.

43. The Council says it continued to seek respite provision, including from Provider C. However, the Council says Provider C advised it was unable to provide respite visits due to COVID-19 restrictions.

44. Mrs X underwent her planned surgery in November 2020. The Council says the only service provider available at this time was Provider B, whom Mrs X had previously declined. Mr and Mrs X say the Council did not provide any respite provision for the period after Mrs X was discharged from hospital. They say shortly after she was discharged, Mrs X was injured by Child Y and had to be readmitted to hospital.

45. The Council says it continued to seek respite provision during 2021. It says Provider B confirmed it could provide support to Mrs X in March 2021 but said it would first need to recruit additional staff. The Council says it continued to liaise with Provider C, but they also needed to recruit additional staff.

46. In April 2021, Mr and Mrs X visited Provider C to look at the provision offered. The Council said Child Y attended teatime visits in May 2021 with a view to attending overnight respite visits in June 2021.

47. In June, July and August 2021, Child Y attended overnight respite visits at Provider C.

48. The Council says Provider C cancelled Child Y’s respite visits in early September 2021 due to staff sickness and holidays. It says Provider C told Mrs X it could restart the respite plan later that month.

Mrs X’s complaint

49. Mrs X complained to the Council on 8 October 2021 and said the respite provided was not meeting Child Y’s needs. Mrs X said Provider C asked her to collect Child Y on 10 August 2021 because it could not cope with Child Y’s level of need. She said Provider C contacted her on 20 August 2021 to cancel the respite provision planned for later that month, and that it subsequently also cancelled provision planned for September and October 2021. Mrs X said the respite provision was inconsistent and unreliable at a time when she was very unwell. She said staffing issues were not her problem and complained the Council had disregarded her poor state of health. Mrs X said the Council had also disregarded the strain the lack of respite had placed on the family.

50. The Council says it continued to seek respite provision, including from Provider C. However, it says Provider C advised it was unlikely to be able to resume provision before Christmas 2021.

51. The Council considered Mrs X’s complaint via its corporate complaints procedure and provided its complaint response on 2 November 2021. It acknowledged it had agreed to provide 74 overnight stays per year for Child Y, but stated that due to COVID-19 restrictions, Provider C was unable to offer respite provision until June 2021. It said following visits in June, July and August, all respite visits at Provider C were suspended due to staffing shortages. The Council said it was working hard to find a suitable solution but said that due to a national shortage of care workers, this may not be possible. The Council apologised for the effect on Mrs X’s family as a result of not being able to access the agreed support package. It said a new respite care centre currently under construction would hopefully open in the new year.

52. Mrs X escalated her complaint to stage two on 7 November 2021. She said the shortage of care workers was not Child Y’s problem and that she considered the Council was discriminating against her family. Mrs X said the new respite care facility may not open until the end of 2022 and she considered the lack of provision was unacceptable.

53. The Council says Mr and Mrs X asked for some daytime respite in November 2021, and that they agreed to receive some support in the home.

54. The Council provided its stage two complaint response on 7 December 2021. It apologised that Provider C had not been able to deliver the agreed respite provision and maintained this was due to COVID-19 restrictions and a shortage of staff. The Council said it was pleased however that it had found an agency to provide daytime respite until Provider C became available.

55. Mrs X escalated her complaint to stage three on 12 December 2021. She said Provider C was still closed and the Council should have provided interim provision for overnight and weekend respite care. Mrs X said the agency referred to by the Council had not yet started to provide daytime respite and said she considered the Council was discriminating against her family.

56. The Council says Mr and Mrs X asked the Council on 23 February 2022 to provide a full-time residential placement or residential school for Child Y.

57. The Council held a stage three complaint hearing to consider Mrs X’s complaint on 21 March 2022.

58. The Council provided its stage three response on 29 March 2022. It acknowledged Child Y had not received the agreed respite care and said it was in the process of looking for a full-time placement. The Council acknowledged its responsibility for Child Y’s care needs and said that where respite care is required but not provided, this is a failure for which the responsibility ultimately lies with the Council. However, it said if no external providers were able to offer a placement, it was unsure what more it could do other than attempting to insource support or offer a placement much further away. The Council acknowledged however, that this may not be acceptable to Mrs X. The Council recommended it consider whether it was possible to employ its own staff to provide the level of respite care if that level of care was not available externally.

59. The Council provided a further response on 20 April 2022. Regarding the option of employing its own staff to provide the agreed respite provision, the Council said this required it to have accommodation registered with Ofsted. The Council said it did not have such accommodation and to provide care to a child in unregistered accommodation would be unlawful. The Council said it was working extremely hard to source appropriate respite for Child Y, but the reasons it was unable to do so were due to external factors. The Council apologised for the anxiety and distress caused to Mrs X and her family, and said it was continuing to work with providers to secure appropriate provision for Child Y.

60. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us.

What happened next

61. The Council issued an amended EHC Plan to Mr and Mrs X on 5 May 2022. The EHC Plan said Child Y needed a permanent daytime respite provider who could fully meet their high level of complex needs so they could access social and leisure activities. The EHC Plan also said Child Y needed a permanent short- break overnight respite provider who can offer permanent regular overnight rest with three-to-one support on a weekly basis.

62. The Council secured a full-time residential placement for Child Y and made them a looked after child under section 20 of the Children’s Act 1989. Child Y moved to the residential placement in July 2022.

63. In October 2022, the residential placement gave notice to the Council to end Child Y’s placement. The Council says the residential placement felt it could not meet Child Y’s needs. The Council says Child Y remains a looked after child under its care and that it is proactively seeking a new residential placement where Child Y’s needs can be met.

Analysis

64. We have exercised discretion to investigate events back to March 2020 because the matters complained about date back to March 2020. Mrs X brought her complaint to us within 12 months of the Council’s final complaint response.

65. Mrs X complains the Council failed to provide respite provision for Child Y. The Council says it contacted 11 residential respite providers on multiple occasions and carried out a national search to check for any respite placements. It identified a service provider, Provider C, but staffing shortages and COVID-19 restrictions limited the provider’s ability to provide the respite provision.

66. The Council says there is a current shortfall in provision of overnight respite in its area for children with a disability, and that this has led to many families being unable to access an overnight service. It says many families do not seek overnight respite because they know it is not available, and this has resulted in some of its vulnerable young people with complex needs coming into residential care earlier than they may have needed to, as families are unable to cope. The Council acknowledges this is not acceptable. However, the Council also says this issue is not just a local one as it says there was a nationwide crisis in terms of availability of respite care during the pandemic, with many other councils similarly affected.

67. The Council says to meet these needs, it has worked with the service provider market over the last 18 months to commission a new Ofsted registered provision which is due to open later in 2022. It says this new facility will provide up to 56 places per week for overnight respite provision.

68. It is positive the Council is taking steps to secure respite provision for families with disabled children in its area. It is also positive the Council identified as part of its own complaint investigation its failure to secure the respite provision it agreed to provide to Child Y. As stated in its complaint response, the Council said, “If care is required and it is not provided then that is clearly a failure and that the responsibility ultimately lies with the Council.” We agree with the Council’s findings on this matter and acknowledge the reasons stated for the lack of provision made. Nevertheless, the statutory guidance is clear that if a council is satisfied it is ‘necessary’ to provide support services, then councils must provide them, regardless of their resources. We acknowledge the Council’s comments and the impact of the pandemic on respite services, but there was no exemption from the Council’s general duty to provide respite care for Child Y as a result of COVID-19. Therefore, the failure to provide overnight respite visits for Child Y is fault.

Mrs X’s complaint the Council discriminated against her family

69. Mrs X complained the Council discriminated against her family but did not specify to the Council the type of discrimination she was referring to. In response to the draft of this report, Mr X said he considered the Council had discriminated against his family because of their surname and because of Mrs X’s and Child Y’s autism spectrum condition.

70. It is not for the Ombudsman to determine whether the Council discriminated against Mrs X’s family regarding any of the protected characteristics referred to in paragraph 17. This is because only a court can determine whether a body has unlawfully discriminated against an individual based on these protected characteristics.

71. The Ombudsman can, however, decide whether a council has acted with fault when investigating a complaint about discrimination.

72. Procedurally, the Council should have contacted Mrs X to ensure it fully understood her view and to obtain any evidence she had to support her claim of discrimination. We have seen no evidence the Council sought to clarify this, and its complaint responses do not address this issue, or explain how the Council considered Mrs X’s complaint of discrimination. As a result, the Council is at fault regarding this matter.

Human Rights

73. We consider Article 8 of the Human Rights Act, a qualified right to respect for private and family life, was engaged by the Council’s failure to provide overnight respite care for Child Y. This is because the lack of respite care caused a significant impact on the family’s ability to enjoy family life.

74. The Council’s EHC Plan identified Child Y needed three-to-one support for the required overnight respite visits, whereas Mr and Mrs X were coping alone. This includes managing without respite care for the period immediately after Mrs X underwent surgery.

75. Decisions and actions should be taken in such a way that they do not conflict with the principles of human rights and equalities. The findings of this investigation highlights the Council’s failure to have due regard for Mrs X’s human rights in this case. We have found fault by the Council regarding this matter as a result.

Recommendations

76. Having identified fault, we must consider if this caused an injustice to Mrs X and/or her family. Mrs X says the Council’s actions placed a huge strain on her both mentally and physically, and that Child Y was also negatively affected because of the missed opportunities to socialise with their peers.

77. Child Y’s CIN records show Child Y wanted the opportunity to do things independently from their parents. We consider the injustice to Child Y is the missed opportunity for them to do this for the period May 2020 to May 2021 and the period September 2021 to July 2022. This is a total of 23 months.

78. The injustice to Mrs X is the lack of overnight respite provision for the same period. The Council’s child protection records acknowledge Mr and Mrs X were struggling to manage Child Y’s behaviour, and that this presented a danger to Child Y and others. This includes the incident in November 2020 shortly after Mrs X underwent surgery, after which she was readmitted to hospital because of the harm caused.

79. To remedy the injustice identified, the Council has agreed to take the following action:

1. Provide a further apology to Mrs X for the fault identified;

2. Make a payment of £1,500 to Mrs X to recognise the distress caused. This amount reflects the harm caused to Mrs X as a result of the lack of respite provision;

3. Make a further payment of £4,600 to be used for the benefit of Child Y. This is in recognition of the distress caused as a result of the missed opportunity;

4. Provide us with clarification of when the new respite facility will be available to provide respite care. The Council should also provide evidence of the steps it has taken to ensure this provision is available as soon as possible.

   The Council has also agreed to take the additional following action:

5. Proactively seek and secure a new residential placement for Child Y. The Council should provide us with evidence of the steps it has taken to ensure a new residential placement is available as soon as possible.

80. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

Decision

81. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Mrs X and Child Y. The Council has agreed to take the above action to remedy that injustice.

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