Summary: Mrs X complained about lack of support and information for her family following an assessment of their care needs. As a result she says she was unable to use the direct payments agreed and her family missed out on support they should have had. We find that the Council was at fault. It did not offer Mrs X the necessary flexibility in using the direct payments and there was poor communication, resulting in a loss of opportunity for the family to have the support it needed. The Council has agreed a suitable remedy.

The complaint

1. Mrs X complained that the Council failed to:
1. properly assess and provide for her sons' needs for care and support and her needs as a carer;
2. provide information to her about the Child in Need process and how she could use direct payments; and
3. fully implement the recommendations of the investigation into her complaint about these matters under the children's social care complaints procedure.
2. As a result she says her family has missed out on support it should have had.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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)
6. The law sets out a three-stage procedure for councils to follow when looking at complaints about children's social care services. The council appoints an Independent Investigating Officer to investigate and an Independent Person to oversee the investigation at stage 2. If the complainant is not satisfied with the outcome, they can ask for a stage 3 review by an independent panel. If a council has investigated something under the statutory children's complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

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How I considered this complaint

7. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy on council support for children and their carers. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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

Relevant law, guidance and policy on support for children and parent carers

9. Councils have a duty to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child’s needs. A disabled child is a child in need. (Children Act 1989, section 17)
10. Councils undertake assessments of the needs of the child to determine which services to provide and what action to take. Statutory guidance 'Working Together to Safeguard Children' ('Working Together') outlines an assessment framework for councils to use. Assessments should look at:
• the child's developmental needs, including their health and educational needs and their family and social relationships;
• the parents' or carers' parenting capacity; and
• family and environmental circumstances such as family history, income, housing, social networks and access to community support.
11. If a parent carer of a child in need requests it, or if it appears to the council there is a need, the council must assess whether the parent has support needs and, if so, what those needs are. This is known as a parent carer assessment. The local authority may combine the assessment with an assessment of the needs of the disabled child. The assessment must consider:
• whether the parent carer has needs for support in relation to the care which he or she provides or intends to provide;
• whether the disabled child cared for has needs for support;
• whether those needs could be satisfied (wholly or partly) by services which the authority may provide under section 17; and
• whether or not to provide those services. (Children Act 1989, section 17ZD/E)
12. If the Council decides it should offer services to meet needs identified in an assessment, it may offer funding to pay for those services, rather than arranging the service itself. This is known as a direct payment. The user may employ a personal assistant or carer to provide the support using the direct payments.
13. Under the Council’s procedures, following a direct payment agreement it will start the payments once the user has identified and recruited a personal assistant or carer themselves or through a service provider or agency. The Council has a contract with an organisation (‘the Agency’) to provide support to people receiving direct payments. The Council refers people to the Agency which offers help with recruiting carers and managing the direct payments. The Agency sends details of the arrangements to the Council’s Brokerage Team, which also deals with queries and problems that arise with the direct payments.
14. The Council’s ‘Children’s Direct Payments Guidance’ (‘the CDP Guidance’) sets out what direct payments can be used for. This includes:
• employing a personal assistant or support worker,
• participating in organised group activities,
• “to pay for beneficial activities such as swimming lessons, guitar lessons, keep fit sessions, attending a social activity etc”.
15. Councils must not allow direct payments to be used to employ a close family member, including sons, daughters or siblings, living in the same household as the person receiving the care. (Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009, regulation 11)
16. Under the CDP Guidance the Council extends the range of close relatives listed to those living outside the household. It says it would not usually expect anyone providing support to a family member to receive payments even if living outside the home. It allows the relative to receive payments “in exceptional circumstances” with authorisation from the relevant Team Manager, provided the Council is satisfied it is “necessary for promoting the welfare of the child”. The CDP Guidance gives examples of circumstances where a close relative may need to be employed as a carer to promote the welfare of the child, including:
• communication difficulties where only the family member can understand communication of needs,
• “unpredictability of times that support is required with consideration for the nature of any night-time support”,
• geographical location preventing access to provide care,
• “mental health considerations such as severe anxiety etc”.
17. The CDP Guidance also says “it is important that all options for receiving services are discussed, including commissioned services, and that the parent and/or young person understands that opting for direct payments is a choice”.
18. The Council also offers short breaks to disabled children, the Short Breaks Local Offer (SBLO), through clubs, groups and activities. Direct payments cannot be used to pay for activities offered under the SBLO.
19. In September 2020, during the COVID-19 pandemic, the government issued guidance on the use of direct payments, ‘Guidance for local authorities and clinical commissioning groups in the delivery of direct payments and personal health budgets’. The guidance advised that the government expected councils and other commissioning bodies to be as flexible as possible in using direct payments to manage any issues arising from COVID-19. This included allowing people to use direct payments to employ family members as personal assistants where necessary. The guidance was withdrawn in April 2022.

What happened

20. Mrs X has two children, B, who is now aged 18, and a younger son, C. Both boys have diagnoses of autism and have Education, Health and Care Plans. C also suffers from anxiety and sleep problems. Mrs X is separated from the children’s father, Mr Y, although Mr Y was initially involved with their care.
21. The Council started a Child and Family Assessment in February 2021. It completed the assessment in early April. The report of the assessment shows the following.
• A section on the parent/carer’s needs in which Mrs X explained her own health difficulties, the impact of C’s sleep problems on her, her desire to spend more time with each child and the extra support she would like to give them.
• Mrs X said she was happy with the assessment but concerned about whether it would lead to any real support because of the well-known difficulties of finding carers locally.
• She was concerned C would find it difficult to have support from a stranger, but if she had to accompany him to activities it would not give her the break she needed.
22. In correspondence with the Council during the assessment, Mrs X asked, given the potential problems she had identified, whether she could use direct payments to pay for activities. The Council’s reply was that once a family finds a carer, either on their own or through the Agency, the family pays the carer using the direct payments. It said some families do use the payments for some activities. But “the purpose of the direct payments is to employ a carer to support young people inside and outside of the family home.”
23. The result of the assessment was a recommendation for a care package of direct payments for B and C to get support to help them gain confidence, independence skills and opportunities to socialise outside the home. It also recommended Short Breaks for C. The package would give Mrs X a break from her caring responsibilities. The Council would hold regular Child in Need meetings.
24. Following a discussion at its resources panel the Council wrote to Mrs X in mid-April to confirm it had agreed the following care packages:
• three hours a week direct payments for B; and
• three hours a week direct payments plus 60 hours Short Breaks Local Offer for C.
25. The email said the Brokerage Team would be in touch with Mrs X to arrange the payments. In the meantime she could contact the Agency for support with advertising for a carer.
26. Mrs X said she was not happy with the offer as it was not enough. She wanted to know how to appeal. The social worker said they could discuss the package at the next Child in Need meeting.
27. The Council sent Mrs X a direct payment agreement to sign. It enclosed a leaflet from the Agency about the arrangements for setting up direct payments and the support the Agency could provide. At the end of April Mrs X wrote to the social worker, SW1, to say she had not heard from the Brokerage Team. Also, the Agency had not been able to answer all her questions and she had not seen a copy of the Child in Need Plan.
28. In late May the Council sent Mrs X a copy of the Child in Need Plan. This showed 40 hours a week SBLO for C as well as the direct payments.
29. Mrs X gave her views about the proposed care package in correspondence with SW1 during May and June and at Child in Need meetings held in May. The first meeting was due to take place on 19 May, but the social worker was unable to attend and the duty worker who replaced her was not fully familiar with the case. Another meeting took place at the end of May.
30. Mrs X said three hours a week was not enough for B, especially during the school holidays. In response to the social worker referring to 40 hours SBLO, Mrs X said she had been told the offer was for 60 hours but she could not see it recorded anywhere.
31. The Council then approved an increase in direct payment hours for B to ten hours a week in school holidays and three in term time. It told Mrs X it would pay her the money once she had identified a carer.
32. By the time of the Child in Need meeting in early July, neither the Agency nor Mrs X had managed to find a carer. There was a new social worker involved, SW2. Mrs X explained that C had not managed to take up all the SBLO hours either because the short break activities on offer were at inconvenient times or locations or because of his anxieties. There was a discussion about other activities to explore. SW2 said she would ask for approval to convert some of the SBLO hours (“originally 40 hours increased to 60”) to direct payments to enable Mrs X to employ a carer to support C at the activities. Mrs X also asked whether she could use the direct payments to employ her older son who lived away from home to support C and take him out when he came back from university during the holidays.
33. On 22 July SW2 put a request to the resources panel for the family to be able to:
• convert 20 of the 60 Short Break hours to direct payments to support C with independence skills so that the care package would be 40 hours Short Breaks and 23 hours direct payments,
• use the direct payments to pay the older sibling who lives away from home to support C with activities until a carer could be recruited through the Agency.
34. At the end of July the panel refused the request to use direct payments to employ the older sibling. There was no mention of the request to convert Short Break hours. The decision was:

“Plan to employ sibling is not approved. Employing an immediate relative would only be agreed in exceptional circumstances - a school holiday is not exceptional for an 8 year old to need additional support”.

35. In an exchange of emails during the first two weeks of August, SW2 said she would need to ask for authorisation for a change of use of the direct payments to pay for activities. Mrs X said she could not understand why the Council had not considered this already as she had asked for it at previous Child in Need meetings. She explained that neither she nor the Agency had managed to find a carer yet and Mr Y was no longer providing as much support so Mrs X had had to give up her job. She said it would be helpful if she could use the funds to pay for activities and pay her older son for support until she could find a carer.
36. SW2 had a meeting with Mrs X in mid-August. They discussed the difficulties in finding carers and SW2 suggested contacting a local university. SW2 confirmed the Council had agreed she could convert SBLO hours to direct payments but did not agree to paying the older sibling. Mrs X said she had not been told this decision. She also explained C had started some activities and felt there were other options while no carers were available. The notes of the meeting record that SW2 was concerned about the impact of the lack of support on Mrs X. She agreed to speak to the Brokerage Team.
37. In early September Mrs X made a complaint to the Council. She complained about:
• delay in starting the Child and Family Assessment,
• a poor assessment and care package,
• failure to provide support since the assessment,
• poor communication, including failing to send Child in Need minutes and plans.
38. Mrs X said she wanted the Council to:
• correct mistakes on the care plans,
• send her any outstanding minutes and ensure she received them in time in future,
• update the care plans to show that she could use direct payments to pay for both activities and employing carers,
• provide backdated payments has she had not had the benefit of the direct payments yet.
39. The Council responded to her complaint on 17 September.
• It recognised there was delay in starting the assessment and apologised for this. It said there were significant staff shortages at the time which had an impact on service delivery, with additional pressures caused by the COVID-19 pandemic.
• It considered the assessment was appropriate and produced a suitable care package, recognising Mrs X’s own needs and the support Mr Y was providing to B and C.
• It said the request for her eldest son to be authorised as a direct payment carer was declined “due to regulations regarding the use of relatives living in the same household as direct payment carers.” The Council had reviewed the decision following a request from SW2 but upheld the decision.
• It confirmed that, as Mrs X had not yet been able to identify a direct payment carer, she could use the direct payments to fund activities. This was so long as were not activities offered under the SBLO and the amount did not exceed the agreed package.
• It recognised that communication and information about the use of direct payments had not been clear and had caused her frustration.
• It said it would send Mrs X copies of minutes of past Child in Need meetings and ensure she received them in time in future.
• It said it would refund direct payments “if there are any that need to be backdated” and would discuss this at the next Child in Need review meeting.
40. During September and October, following the Council’s response, Mrs X wrote to the Council about arranging a date for the next Child in Need meeting and saying she had not received any paperwork from the Brokerage Team.
41. In mid-October Mrs X wrote to the Brokerage Team to say she had not received any direct payments yet. She wanted the payments to be backdated so she could “be refunded for things I had to pay for personally” and to fund future activities and a carer once she had employed one. She said she had been trying to contact Brokerage several times but received no response. The Brokerage Team replied saying it was trying to get a formal written agreement so she could use direct payments for activities and would do so as soon as possible. SW2 told Mrs X the matter was “still with management for a decision regarding the direct payments”.
42. Following further correspondence, the Council wrote to Mrs X with its decision on 2 December. It confirmed:
• direct payments for B were for three hours a week in term-time and ten hours a week in the holidays,
• direct payments for C were for three hours a week for 52 weeks of the year,
• the payments would start that day and could be used to fund activities until carers were identified,
• it did not agree to convert the 20 hours SBLO to direct payments for C,
• it had agreed a one-off lump sum of £500 (£250 per child) as a backdated payment.
43. The Council started making the direct payments for both B and C in December. Ms X used them to pay for activities and therapies for her sons.
44. Mrs X took her complaint to stage 2 of the statutory children’s social care complaints procedure. Key findings of the IO’s stage 2 report relevant to this investigation were as follows.
• The IO upheld the complaint about delay in starting the assessment.
• The IO did not find fault in the way the assessment was carried out. She found it took account of the needs of B, C and Mrs X as parent carer and offered a package of care. She noted that the shortage of carers meant the Agency was unable to help the family. But she did not consider the Council could be held directly responsible for the lack of carers. The report said “it must also be recognised that once a family decides to opt for direct payment and this is agreed, they take on the responsibility of recruiting carers”.
• The Council did not deal properly with Ms X’s requests to use the direct payment to fund activities and to pay her eldest son to provide support. There was confusion and differing understanding among staff about what direct payments could be used for, and a lack of awareness about how to question decisions. Yet the Council’s own guidance indicates that direct payments can be used to fund activities.
• The IO ”struggled to understand the basis for the Panel’s refusal” to allow Mrs X to use the direct payments to pay her eldest son as a carer. In her view C’s high level of anxiety and his sleeping problems (which meant he had a for support at night), indicated there were exceptional circumstances which would allow a sibling to be paid. She also pointed out that the sibling concerned did not normally live in the same home but could be available during university holiday periods. She said another indicator of exceptional circumstances was the difficulty of identifying suitable carers during the COVID-19 pandemic.
• The IO found there were failings in the Council’s communications with the family, including delays in sending out minutes of Child in Need meetings. She did not uphold the complaint that the Council had told her it had agreed 60 hours SBLO for C and then telling her this was untrue without any explanation. She said there was no evidence to support this claim.
45. The stage 2 report recommended that the Council take action in addition to the apology already given at stage 1 including to:
• carry out a “complete and thorough review of information provided” to Mrs X about any agreements relating to the care package, with an explanation of why any agreements have not been implemented and when they will be,
• ensure Mrs X receives “all DPs agreed”, explain the reasons if the full amount has not been paid, and say when any outstanding payments will be made,
• decide on Mrs X’s request for compensation, as the IO appreciated Mrs X found the whole situation very stressful.
46. The IP supported the stage 2 findings and recommendations. The Council also agreed. It set target dates for completing the recommended actions.
47. Mrs X is not satisfied with the action the Council has taken following the stage 2 recommendations. She said she received a lot of information from the Council but it was still unclear to her when care plans were completed. C was still not receiving any support from carers. There were further delays in receiving minutes of meetings. She said the Council had not offered her any further payments or an explanation of the £250 per child already offered,

Analysis – was there fault causing injustice?

48. I do not find fault with the way the Council carried out the Child and Family Assessment. In my view it followed the assessment framework set out in the Working Together guidance. It considered and recorded Mrs X’s needs as a parent carer.
49. However, based on the information I have seen, I consider the Council was at fault in how it dealt with the direct payments. I do not consider it has so far provided a suitable remedy for the impact of these failings on the family.
50. As well as the communication failings the stage 2 investigation identified, I have seen evidence confirming that the Council gave Mrs X conflicting information about the Short Break hours, contrary to the findings of the stage 2 investigation report. At times it told her it had agreed 60 hours and at others that it had agreed 40. It told her it had agreed to convert 20 of the SBLO hours into direct payments and then said this was not the case. This caused confusion and frustration for Mrs X.
51. Also I find that the Council failed to take proper account of national and local guidance on the flexible use of direct payments in its decision-making.
52. Most of the events in this complaint took place during the period covered by the government guidance on the use of direct payments during the COVID-19 pandemic (see paragraph 19 above). The Council itself referred to pressures caused by the pandemic as part of the reason for its difficulties in providing services. Yet in this case I do not consider it adopted the flexible approach to the use of direct payments the government recommended.
53. This is illustrated by its response to Mrs X’s requests to use the direct payments to fund activities and to pay her eldest son to support C during holidays. Mrs X expressed concern from the outset about the difficulty of finding carers. She kept the Council updated about the continuing problems. She asked the Council about the possibility of using direct payments to pay for activities during the assessment in April 2021. The Council’s own policy makes it clear that it is possible to use direct payments for activities. Yet the Council did not give her a clear answer that she could do so until it responded to her complaint in September 2021. A month later it was still saying it needed a formal agreement to allow her to do so.
54. Had the Council confirmed the position earlier Mrs X would have been able to arrange activities for C sooner. Mrs X says she did not wish to spend money on activities without knowing whether they would be covered by the direct payments. So the lack of clarity and the delay meant that C missed out on opportunities to engage in activities to help with his independence, and Mrs X missed out on respite from her caring role.
55. In relation to employing the older sibling, like the IO, I consider that the Council failed to apply the law and its own guidance properly. The Council told Mrs X she could not use direct payments in this way because of the regulations prohibiting paying close relatives who are members of the same household. This fails to take account of the fact that the older brother lived away from home. The Council also did not take account of all the family circumstances and C’s needs when it decided there were no exceptional circumstances justifying approval to employ the brother. The Council was aware of C’s particular needs through the assessment. It also knew Mrs X had been unable to identify anyone else to provide the support and so had been unable to use the direct payments. Taking all these factors into account my view is, on balance, that if the Council had considered the matter properly it would have decided that Mrs X could employ her older son as a carer.
56. Again, the result of these failings is that C missed out on support and Mrs X missed out on respite they could have had.
57. However I do not agree with the IO that once a parent has agreed to direct payments the Council has no more responsibility for the difficulties in finding carers to recruit. When the Council discusses with parents how support under a care plan will be provided, its own guidance says it should look at all options, including commissioned services. The parent or young person should understand that opting for direct payments is a choice. Mrs X says when she was unable to recruit carers she asked the Council if it would commission the service itself. The Council says it would have explored alternatives to the direct payment scheme with her when it first discussed the support, but it does not have any records of these discussions. I have not seen any evidence that the Council looked into commissioning support workers itself, although it was aware throughout that neither Mrs X nor the Agency had been able to identify any. Again, I consider the lack of flexibility in the Council’s approach is fault.

Remedy offered

58. In response to our enquiries, the Council said that following the stage 2 IO’s recommendations it considered whether to backdate the direct payments. It says it does not normally pay direct payments retrospectively unless this has been agreed in advance and there is evidence of spending. In this case, as the family had not employed anyone and so it had not spent the amount agreed, the Council would not backdate the payments. It said it offered the payments of £250 per child “to recognise their negative experience of the direct payment scheme.” However it said it would review the position if it had evidence of spending between September and December 2021.
59. The Council said it did not consider ‘additional compensation’ as it had already agreed the £500 payment.
60. I do not consider the offer the Council has made is sufficient to recognise the impact of the loss of opportunity for B and C to have support they were assessed as needing and for Mrs X to have breaks from caring. Allowing a reasonable period of one month for the Council to recognise the difficulties Mrs X was having finding people to employ, address her questions and offer the necessary flexibility in the use of direct payments, this lasted around seven months. Nor does the Council’s offer fully recognise the frustration and distress caused by the poor communication.
61. The Council has explained the steps it is taking to help tackle the shortage of carers, including:
• ensuring carers are paid the living wage,
• supporting care agencies with overseas recruitment,
• supporting training and development of carers,
• working with Adult Services to set up a register of Personal Assistants.
62. I welcome these measures. But while the problem persists it is all the more important to ensure parents and young people are aware of all the options available for providing for support needs.

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Agreed action

63. To remedy the injustice to Mrs X and her children, the Council has agreed to take the following action within one month of the final decision on this complaint:
• send a written apology to Mrs X for all the faults identified in this investigation and the impact they had,
• make a payment of £500 each to Mrs X, B and C for the distress caused by the lack of opportunity to have support and breaks from caring for a prolonged period,
• reimburse Mrs X for any expenses she incurred on paying for activities for B and C that would have been covered by direct payments between April and December 2021. This will depend on Mrs X providing suitable evidence of her spending.
64. The combined payments above should not exceed the amount Mrs X would have received in direct payments over the period.
65. The Council will also pay Mrs X £300 to recognise the frustration and anxiety caused by the poor communications and her unnecessary time and trouble in pursuing her complaint.
66. The Council will remind relevant officers of its policies on alternative ways of using direct payments, including to fund activities and pay close relatives in exceptional circumstances.
67. The Council has also agreed that within three months it will put in place a system for ensuring that it has and records discussions with parents or young people about all available options for receiving services once a care plan is agreed. This will include direct payments and commissioned services.
68. The Council should provide us with evidence it has complied with the above actions.

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Final decision

69. I have found that the Council was at fault in how it dealt with direct payments for Mrs X’s family. The Council has agreed a suitable remedy to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman