Summary: Miss F complained the Council has failed to provide adequate respite provision for her son who is a child in need. She also says the Council significantly delayed responding to her complaint and it has failed to provide an appropriate remedy for her and her son’s injustice. We find fault with how the Council dealt with the respite provision and for its delays in responding to Miss F’s complaint. The Council apologised to Miss F and offered her a suitable financial remedy. This is a sufficient for her and her son’s personal injustice. The Council agreed to implement service improvements when it considered Miss F’s complaint, which it has agreed to evidence. It has also agreed to our further recommendation to make another service improvement to address the significant delays during the statutory complaints procedure.

The complaint

1. Miss F complained the Council has failed to provide adequate respite provision for her son, G, who is a child in need. She also says the Council significantly delayed responding to her complaint and it has failed to provide an appropriate remedy for her and G’s injustice.
2. Miss F says she has been left with a minimal amount of support and she nearly lost her job because of the lack of respite.

Back to top

What I have and have not investigated

3. We cannot investigate late complaints unless there are good reasons to. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. Miss F refers to matters from 2018, but she did not refer her complaint to us until August 2022. I have considered the Council’s actions from April 2021 onwards in line with the investigation under the statutory complaints procedure. I am satisfied Miss F had sufficient opportunities to refer her earlier concerns to us sooner, and therefore I have not exercised discretion to investigate them.

Back to top

The Ombudsman’s role and powers

4. 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)
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)
6. 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.
7. 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)

Back to top

How I considered this complaint

8. I considered information from Miss F. I made written enquiries of the Council and considered information it sent in response.
9. Miss F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Child in need

10. Section 17 of the Children Act 1989 states it is the duty of every local authority to safeguard and promote the welfare of children within their area who are in need.
11. Local authorities carry out assessments of the needs of the child to determine which services to provide and what action to take. They have a positive duty to take reasonable steps to identify children in need within their area and, when identified, to undertake an assessment of those needs.
12. If a local authority decides the child and/or parent qualifies for services, it may provide the services itself or offer direct payments. Direct payments are monetary payments that are paid to the parent or carer of a disabled child. It enables them to arrange and pay for their own support.

Children’s statutory complaints procedure

13. The Children Act 1989 sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. services. At stage two of the procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review panel to be held.
14. The regulations place a duty on councils to act promptly to ensure the complaint is dealt with as quickly as possible. The Department for Education guidance, Getting the Best from Complaints says:

• The complaint should stake a maximum of 20 working days at stage one.
• The stage two investigation should take a maximum of 65 working days.
• A maximum of 30 working days may be taken to convene and hold a stage three review panel.

15. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless we consider that the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

16. This chronology provides an overview of key events and does not detail everything that happened.
17. Miss F’s son, G, has learning difficulties and complex needs. He is considered a child in need.
18. The Council provided Miss F with a personal budget so she could access short break activities for G. It also set up a direct payments package for two hours of carers support per week.
19. The Council visited Miss F and G in October 2020 to check whether they had the support they needed. Miss F agreed for the Council to put G forward for an assessment break. She said she wanted G to access respite outside of the home environment as there were limited things for him to access in the community.
20. G attended a two-day assessment at a respite setting (Placement B) in March 2021. Placement B reviewed G’s stay in April. It noted that G had a positive stay, but he would benefit from a themed break service that would continue to promote his independence and allow him to mix with peers within a similar cohort.
21. The Council arranged for its panel to discuss G’s case. The panel agreed with Placement B’s recommendation for F to have themed breaks. However, it was not possible to deliver this service due to the COVID-19 pandemic.
22. The Council increased the direct payments package to 4.5 hours per week in June. It also said it would explore whether G could access link family provision. This is when foster carers offer short breaks to children with complex needs. However, the Council did not pursue this due to limited availability.
23. Miss F complained to the Council in October 2021. She said it had failed to provide her and G with suitable support and respite since 2018.
24. The Council responded to Miss F’s complaint the following month. It apologised for the delay in responding. It said it initially tried to support her to source childcare in the form of child-minding services and suitable activities. This then changed to providing direct payments so she could access carer support for G. It said G’s direct payments support increased from 2.5 hours per week to 4.5 per hours week after it decided Placement B was not suitable for G. It said if G was to access respite in a setting with children with more complex needs, there was a risk he could learn negative behaviours.
25. Miss F was unhappy with the Council’s response and referred her complaint to stage two. She said the Council failed to provide appropriate respite care for G, it offered services that were not available, and it failed to explain why G could not attend Placement B. She also said it failed to provide her with the outcome from the panel and it refused to re-assess G for respite at Placement B. Finally, she said the Council failed to adequately respond to her complaint at stage one and its response was delayed.
26. The Council appointed an independent officer (IO) and independent person (IP) to the case in December.
27. After discussions with Miss F, the Council increased the direct payments package to 13.5 hours per week in April 2022.
28. The IO completed her investigation and issued her report in July 2022. She fully upheld five out of nine of Miss F’s complaints. She partially upheld three complaints and did not make a finding on one. She found the Council had a statutory duty to provide respite services which were not available due to the COVID-19 pandemic. She noted even though the Council could not provide this service, it delayed increasing the direct payments package. She also found the Council failed to confirm in writing whether direct payments could be used for childcare, and it failed to provide Miss F with the written outcome of the panel. Finally, she found the Council failed to be open about the limited services available, such as the link family provision, and the stage one response to the complaint was delayed.
29. She recommended for the Council to consider whether it should financially reimburse G given that themed breaks were not available.
30. The Council considered the IO’s report. It apologised to Miss F and G for the distress its faults had caused. It said following a reassessment, it had increased the direct payments for G to 13.5 hours per week. It said it would backdate the increase to when Miss F first raised her complaint in 2021. It also offered her £250 for her distress and a further £250 for the delays she experienced during the complaints process.
31. Miss F was unhappy and referred her complaint to stage three. She disagreed with the Council’s proposed remedy and said the matter had been going on since 2018.
32. The stage three panel heard Miss F’s complaint in November. Members changed the findings for the partially upheld complaints to upheld. They noted the Council failed to provide respite provision and did not offer direct payments in its absence. They recommended for the Council to apologise to Miss F, review the financial offer and explore the possibility of G undergoing an assessment for weekend respite at Placement B. They also said the Council should review the availability of the link family provision.
33. The Council wrote to Miss F in December after the stage three panel. It said it would review the link family provision. It said the assessment at Placement B was valid and appropriate. It said it would not complete a reassessment due to the potential for an adverse impact on G’s wellbeing. It said it would backdate G’s direct payments package of 13.5 hours per week to April 2021. This amounted to £5,193. It said it could not back the payments any further because it had to be based on when the assessment was done, and within the 12-month timescale set out in the complaints procedure. It also reoffered the £500 from its stage two response.
34. Miss F contacted the Council to confirm she would accept its offer. However, she said she still had some outstanding concerns she wanted the Ombudsman to investigate.

Back to top

Analysis

35. It is not our role to reinvestigate matters which have already been subject to a properly conducted and independent investigation. After reviewing all documents, I am satisfied there does not appear to be an obvious flaw in the investigation process that would undermine the conclusions reached. The panel notes also show Miss F complaints were appropriately considered, resulting in some findings being changed to upheld.
36. The Council has apologised to Miss F and G, has offered a payment for Miss F’s distress and her time and trouble, and has also backdated the increased direct payments package to April 2021. In my view, this is a suitable remedy for Miss F’s and G’s personal injustice for the faults identified. I therefore do not recommend anything further.
37. Miss F says the matter has been ongoing since 2018, and she is unhappy the remedy does not reflect this. The Council has explained it cannot backdate the payment any further as it is based on the assessment from April 2021. I agree with the Council’s view that the remedy can only be backdated to when the assessment determined G qualified for further respite support. Miss F also had reasonable opportunities to bring her earlier concerns from 2018 to the Council, and the Ombudsman, much sooner.
38. Miss F is also unhappy the Council will not re-assess G for further respite provision at Placement B. The Council explained during the complaints procedure that putting G through a further assessment could be potentially detrimental to his wellbeing. This is because children and young people who attend Placement B have very challenging behaviours. This is decision it is entitled to take, even if Miss F strongly disagrees with it. It has now put G forward for a sleep over club, which is designed to support children and young people benefit from overnight breaks to support their independence.
39. The Council confirmed during the complaints procedure it now ensures minutes are taken during panel hearings so it can evidence its decision making. It also said it would review the link family provision in line with the panel’s recommendations, which I welcome. However, it failed to provide me with any evidence it has completed this recommendation when it responded to my enquiries. It should now do so. I also consider the Council needs to make further improvements to its service to address the faults during the statutory complaints procedure. The Council failed at each stage to adhere to the timescales. These delays were excessive. Therefore, the Council should provide evidence it has taken steps to address this.

Back to top

Agreed action

40. To take action to improve its service, by 21 August 2023 the Council has agreed to:

• Review the operation of its statutory complaints procedure to identify where it can make changes to prevent delays.
• Provide us with evidence that it has reviewed its link family provision.

41. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

42. There was fault by the Council, which caused Miss F an injustice. The Council has taken sufficient steps to remedy this injustice. However, the Council has also agreed to implement service improvements to prevent a recurrence of the fault.

Back to top

Investigator's decision on behalf of the Ombudsman