Summary: Ms B complained the Council had not provided sufficient support to her and her two children who have additional needs. She said that overnight respite had not been provided and the Council had not completed the actions it undertook to do in response to her complaint. She said that as a result she and her children have not had the support they need both in terms of respite and the support she needs as a carer. There was fault which caused injustice. The Council will take the action recommended below, apologise to Ms B and make a payment to her.

The complaint

1. I refer to the complainant as Ms B. She complained the Council had not provided sufficient support to her and her two children who have additional needs. She said that overnight respite had not been provided and the Council had not completed the actions it undertook to do in response to her complaint. She said that as a result she and her children have not had the support they need both in terms of respite and the support she needs as a carer.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’  and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
3. 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. If there has been fault we must considered whether this 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)

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How I considered this complaint

6. I considered the complaint and documents provided by Ms B and her advocate and spoke to them. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Ms B and the Council and considered their comments.
7. 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

Support for disabled children

8. The Children Act 1989 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 entitled to an assessment under section 17 of the Act. Assessments should take account of the needs of the whole family.
9. An assessment which identifies significant needs will generally lead to the provision of services, but councils do not have a duty to meet every assessed need. Whether a service is required depends 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. While some services may be offered directly to the disabled child, services may also be offered under section 17 to parents or siblings.

Child in Need plans and meetings

10. When a council assesses a child as being in need and decides to provide services, it should develop a multi-agency child in need plan which sets out which organisations and agencies will provide which services to the child and family.
11. The plan must be reviewed within three months and further reviews should take place at least every six months thereafter. This is usually done by convening regular child in need meetings involving professionals and the parent. The reviews may determine whether the child is no longer a child in need and the case can be closed or supported through an Early Help plan.
12. Early Help is support the council gives to children and families where they have additional needs that cannot be met by universal services. The court has said Early Help may be provided for disabled children with lower level needs (R(L and P) v Warwickshire County Council [2015] EWHC 203 (Ad-min)). Birmingham Safeguarding Children Partnership has published guidance on the thresholds of children’s needs. This says children with additional needs may require an intensive or substantial package of support which can be met without the need for statutory social work intervention.

Background

13. Ms B has two children who have additional needs.
14. She complained to the Council in December 2020 about various aspects of the support and involvement from the Council. The Council considered the complaint under the statutory children’s complaint process. It completed consideration of the complaint in September 2022. The Council accepted there were delays and faults in the complaint process and apologised and paid Ms B £500 in recognition of the faults and the impact on her.
15. We do not consider a complaint afresh where it has been considered under the statutory process if we are satisfied that the process was sound, reached fair conclusions and the Council responded appropriately. Although there were some faults in the process, the investigation at stage two was sound in its assessment of the main issues. At the review panel it was agreed with Ms B it would only consider the recommendations and outcomes from the stage 2. The Council then considered the review panels recommendations. The outcome was for the Council to:
• pay £1500 to acknowledge the impact the failure to provide a service to the children when direct payments were agreed in March 2019;
• pay £500 to acknowledge the failure to review the children’s Child in Need (CIN) plans at the correct frequency;
• pay £250 to acknowledge the uncertainty caused following the agreement in July 2021 (and the subsequent delay) to allocate a new social worker for the children;
• pay £250 to acknowledge the anxiety caused by not confirming the outcome of the carer’s assessment completed in June 2020.
16. I refer to the main outstanding issues under the headings below.

Carer’s assessment

17. The Council carried out a carer’s assessment for Ms B in June 2020. The investigating person noted in their report that this did not develop into any form of a plan for support for Ms B. The review panel that considered Ms B’s complaint in July 2022 stated it was unclear whether there had been an assessment of Ms B’s needs. It recommended that an assessment should be completed as a matter of urgency.
18. I have seen a copy of an undated carer’s assessment. That was considered by the children in need resource panel in early October 2022. The panel concluded that any further support Ms B needed was as a result of her own needs as a vulnerable adult rather than arising from her role as a parent carer. I do not know how the Council told Ms B of that decision.
19. There was not fault in the Council’s actions immediately following the review panel. It assessed Ms B as a parent carer and there was not fault in how it reached the view it did about her support needs as a parent carer. But it is still unclear what has happened about her adult social care assessment. The best way forward to address this point is for the Council to consider this under the statutory complaints procedure. If Ms B is not satisfied with the response then she can make a further complaint about that to us.

Support for the children since July 2022

20. In August 2022 the children were stepped down from a social work team to the Short Breaks and Review Team.
21. The Council is not required to hold monthly child in need meetings or to allocate social workers to them. The Council can determine that children with additional needs do not require statutory social work support. There was not fault in the Council’s decision to change the way support was provided to the children. However, there was delay in informing Ms B of this decision. The Council did not write to Ms B until the end of November. That was fault.
22. A family support worker visited Ms B at the end of January 2023. In April a social worker was allocated to the family. They contacted Ms B to arrange a home visit. That took place in early June. Ms B sent me a recording of that meeting. Ms B was unhappy with the visit as she considered that the main issue was about the respite arrangements for the children (I refer to this further below) and it was unclear what the purpose of the meeting was.
23. The Council’s records after the visit say there needs to be a good quality assessment of the children to identity their needs.
24. The Council was not clear in its communication with Ms B about what it is now doing. It did not explain why a social worker had been allocated and what the purpose of the visit was. This is fault.

Respite for the children

25. The Council identified that the children should each receive two overnight respite stays a month. The arrangement that was in place broke down in September 2022. The Council has not been able to find any alternative provision since then which could accommodate both the children together. It has offered provision separately, but at the same time. It considers this is appropriate as their needs are different and this would meet their needs. Ms B considers this is not appropriate and that the respite needs to be for them together.
26. This is the single most significant issue for Ms B. At the review in January 2023 the children asked about this and she was clear that this was the most pressing issue. It was over this point that the meeting broke down.
27. There is a difference of view between Ms B and the Council about the form the respite should take and whether the children need to be together. It is not for me to come to a view on which is right – I am looking at whether the Council has considered it properly. The Council has not explained, other than to say that the children have different needs, why they can receive respite separately. The Council recognises, and I presume that is what has prompted the appointment of a social worker to the family, there needs to be a thorough reassessment of the needs of the children. For this to move forward that assessment needs to happen and for any provision to be made based on the identified needs of the children now.
28. The Council explained the attempts it made to make the provision for the children together, I do not consider there is fault in the Council’s actions. But, the Council was not able to make the agreed provision, and that is service failure and therefore fault.
29. The Council’s position is that the offers of separate respite for the children would have met their needs. I cannot come to any view without their being an upto date assessment of the children. But the lack of clarity by the Council about why a reassessment was necessary meant Ms B did not engage in that process. That in turn meant a final position about the provision for the children was delayed.

Injustice

30. There is some injustice to Ms B caused by the failings I refer to above. The lack of clarity and clear communication from the Council meant it was not clear what the Council’s intentions were. If the outcome of the assessment is that the children should receive respite together then there is a significant injustice to both them and Ms B because of the failure to make that provision from September 2022. The Council should address itself to this if that is the outcome of the assessment and propose a remedy. If Ms B is not satisfied with any remedy then she should being the matter back to us. But if the outcome of the assessment is that the children can receive respite separately then there still has been some injustice to Ms B and the children. Had she known this sooner then she could have decided whether to take up the offered separate respite. So there is some uncertainty around that and that is an injustice.
31. The only remedy that can now be provided is for the Council to make a symbolic payment to Ms B in recognition of the injustice to her.

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Agreed action

32. The Council will apologise to Ms B having regard to our guidance on making an effective apology. It should also pay her £500. It should do so within a month of the final decision.
33. The Council should complete an assessment of the children including, consideration at the resources panel, no later than 12 weeks from the date of the final decision. That time frame is dependent on co-operation by Ms B.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. There was fault which caused injustice.

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Investigator's decision on behalf of the Ombudsman