Summary: Ms Y complains the Council failed to consider whether her family’s housing conditions meant any of her children were ‘in need’ (under Section 17 of the Children Act 1989). We found fault by the Council, which meant Ms Y missed out on the Council carrying out Child in Need assessments for her children. To remedy this, the Council has agreed to: apologise to Ms Y, make her a payment, and carry out the assessment for her youngest child. The Council has also agreed to make several service improvements.

The complaint

1. The complainant, who I shall refer to here as Ms Y, complains the Council has failed to consider its Children Act 1989 duties in respect of the impact her current housing conditions are having on her children. She says the Council has failed to properly consider whether the living conditions mean any of her children are ‘in need’ (under section 17 of the Children Act 1989).
2. Ms Y says, in addition to disrepair and infestation issues with the property, the family lives next to supported housing provided by housing association, Housing Association One, where she says crimes have occurred that could affect her children’s wellbeing or safety. Ms Y says she has had to report safeguarding concerns to social services about incidents with certain housing association tenants.
3. Ms Y says she and her family are living in inadequate living conditions. She says this has significantly impacted her and her family’s health and wellbeing. Ms Y says her older children have been unable to invite friends round due to the state of the property and this has affected their ability to maintain certain friendships. She says the housing situation has affected family relations and caused them distress and stress.
4. Ms Y says her children have missed out on having their needs considered under the Children Act 1989 and possible associated support from the Council.

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The Ombudsman’s role and powers

5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
8. 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)

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How I considered this complaint

9. I spoke with Ms Y about her complaint. I considered the information the Council and Ms Y sent me.
10. Ms Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
11. 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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What I found

Child in Need

Section 17 duties

12. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
13. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

Duty to provide services

14. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare.
15. Where a referral is accepted under Section 17 the council should lead a multi-agency assessment and complete it within 45 working days. Where the council’s children’s social care decides to provide services, it should develop a multiagency child in need plan which sets out which organisations and agencies will provide which services to the child and family. The plan must be reviewed within three months of the start of the child in need plan and further reviews should take place at least every six months thereafter. (Working Together to Safeguard Children) 

Child in Need Plan

16. 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 complaints procedures

17. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.
18. If a family complains to the council about the council’s action or any decision made under Section 17 of Children Act 1989, then the council should reply to that complaint using the Children Act statutory complaints procedure.
19. The first stage of the statutory complaints procedure is local resolution. Councils have up to 20 working days to respond.
20. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
21. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.

What happened

22. Ms Y is a Council tenant.
23. As explained above, I cannot investigate matters that concern the provision or management of social housing by the Council acting as a social landlord to Ms Y. This includes any action taken by the Council in response to reports of disrepair or infestation issues. However, where necessary and relevant to this children’s services complaint, I have made reference to Ms Y’s claims about her housing situation.
24. During the summer 2020, Ms Y contacted her allocated Family Solutions Key Worker in the Council’s Early Intervention and Family Support Service. At this point, Ms Y was living with her three children: B and C (who were both 16 years old at the time) and D (who was under the age of compulsory school age). D has several conditions which may be considered disabilities under the Equality Act 2010 and Ms Y is his main carer.
25. Ms Y told the Key Worker that the family was struggling to cope with significant disrepair issues and mice infestations at the family’s home. She asked for support with the family’s housing situation.
26. In June 2020, the Family Solutions Key Worker wrote a letter to the Council’s Housing Assessments and Solutions, Health, Wellbeing and Adults Department. She asked if the Department would carry out repairs or consider moving the family to more appropriate accommodation. The Key Worker explained she had met with the family and reviewed the photos of the housing issues that Ms Y had sent her. The Key Worker confirmed she had seen evidence of mice droppings and carpet beetles throughout the property, as well as several disrepair issues, including a leak from the toilet bowl and loose floorboards.
27. The Key Worker said the housing situation was significantly negatively impacting Ms Y’s children as follows:

• B and C both found the living conditions distressing and the conditions were affecting their wellbeing and mental health. They felt isolated and frustrated. Both B and C said they felt their house was not safe and the mice infestation posed a health hazard. B and C both said the mice infestations had affected friendships as they did not feel able to explain the reasons why they could not invite their friends to visit. They said they did not want to risk mice crawling on their friends or being near their food.
• D was finding the living environment frustrating as family members were having to regularly take items and toys away from him to make sure he did not put anything in his mouth. This was out of concern the items were contaminated by mice droppings or urine. The family were regularly having to boil D’s clothes or buy new ones because of this. D had to sleep with Ms Y as mice were going into his bed.
• the family felt unable to relax in their home. This was affecting relationships between members of the household.

28. In August, the Family Solutions Key Worker completed a referral form to a Children’s Safeguarding Officer in the Council’s Housing Assessments and Solutions, Health, Wellbeing and Adults Department. It provided details of Ms Y and D’s health conditions. It said B and C had been referred for further support as young carers. The Family Solutions Key Worker said the reasons for the referral were: “The housing issue is the main cause of concern due to the disrepair and the mice infestation that has intensified which has meant that [D] is staying with father. This is having an emotional impact on the [B, C and Ms Y].”
29. In early September, the Family Solutions Key Worker chased the Children’s Safeguarding Officer for an update.
30. The next day, the Children’s Safeguarding Officer replied to say the Council was not able to move Ms Y based on the reasons given in the referral form and Ms Y should discuss her housing options with her tenancy officer.
31. I understand that Ms Y continued to raise concerns about her children with the Council.
32. In February 2022, Ms Y complained to the Ombudsman.
33. Ms Y complained the Council failed to consider its Children Act 1989 duties in respect of the impact her housing conditions were having on her children. She said the Council had failed to consider whether the living conditions meant any of her children were ‘in need’ (under section 17 of the Children Act 1989) due to:

• disrepair and infestation issues with the property; and
• safeguarding concerns she had reported to the Council about the behaviour of a neighbour in supported housing provided by Housing Association One. She said crimes had occurred in the supported housing that could affect her children’s wellbeing or safety.

34. The Ombudsman sent the Council’s details of Ms Y’s complaint. We asked it whether the Council had considered Ms Y’s complaint.
35. In June, the Council said it was unable to deal with Ms Y’s complaint under its complaint procedure because Ms Y was pursuing the issues through the legal protocol for housing disrepair claims. It said Ms Y’s complaint had been forwarded to its legal team who were in contact with Ms Y’s solicitors.

Analysis – was there fault by the Council causing injustice?

36. I have considered the evidence available to me, including the Council’s response to our questions about its handling of Ms Y’s complaint.
37. In my view, Ms Y’s children’s services complaint was separable from the issues considered under the legal protocol for housing disrepair claims. In Ms Y’s case, the Council should have considered its duties under Section 17 of the Children Act 1989 from the point Ms Y and her children were referred to the Council’s Housing Assessments and Solutions, Health, Wellbeing and Adults Department in summer 2020. When the Council became aware of Ms Y’s complaint the Council had failed to consider its Children Act 1989 duties, it should have progressed this part of her complaint through the statutory complaints process. However, based on the evidence seen, I find the Council has failed to consider these points and its duties under Section 17 of the Children Act 1989. This is fault, which caused Ms Y to miss out on having Child in Needs assessments for her children.
38. In these circumstances, I have recommended the Council carries out the Child in Need assessment now for D. If Ms Y remains unhappy with the outcome of the Council’s assessment, the Council should consider any subsequent complaint under the statutory complaints procedure.
39. However, as B and C are now over 18 years old, I cannot recommend the Council carries out Child in Need assessments for them. Instead, I have recommended the Council apologise to Ms Y and make her a payment in acknowledgement of the missed opportunity to access this service.

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Agreed action

40. Within four weeks of my final decision, the Council has agreed to:
1. apologise to Ms Y in writing for the fault causing injustice, including by failing to put her complaint through the statutory complaints procedure;
2. start the Child in Need assessment for Ms Y’s youngest child, D. If Ms Y is not happy with the outcome of this assessment, the Council should put her complaint through the statutory complaints procedure; and,
3. make a payment to Ms Y of £200 to acknowledge the injustice caused by the missed opportunity to have a Child in Need Assessment for her older children, B and C and to have this complaint considered under the statutory complaints process. When recommending this remedy, I have considered the Ombudsman’s published guidance on remedies.
41. Within two months of my final decision, the Council has also agreed to:

• circulate a reminder to relevant staff of its duties under Section 17 of the Children Act 1989 and the circumstances when a Child in Need Assessment should be carried out, including where the individual affected has accessed the legal protocol for housing disrepair claims;
• review its guidance to staff on handling complaints where the complainant is accessing the legal protocol for housing disrepair claims. The Council should make sure it is clear to staff when complaints about children’s social care services should be treated as separable from the legal protocol. This should make specific reference to the circumstances when children’s social care services complaints should be put through the statutory complaints process; and,
• circulate a reminder to relevant staff that children’s social care services complaints that fall under the statutory complaints process should be treated as separable from housing disrepair claims. Those complaints that have completed the statutory complaints procedure may be considered by the Ombudsman if the complainant remains unhappy.

42. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

43. I have completed my investigation.
44. I have decided to uphold Ms Y’s complaint. This is because I have seen evidence of fault by the Council causing injustice. The above recommendations are suitable ways for the Council to remedy this, which it has agreed to.

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Investigator's decision on behalf of the Ombudsman