Summary: the Council has not explained how it decided how much support to offer Mrs M’s son, B. As a result, its decisions appear arbitrary. The Council should review its processes to ensure in future it acts rationally, follows agreed procedures which are explained to the family and gives clear and logical reasons for its decisions. It should make a symbolic payment to recognise the impact of faults on Mrs M.

The complaint

1. Mrs M complained about social care support for her son, B. Mrs M complains the Council has not considered the impact on her family of the faults identified by the Council’s complaint investigation. Mrs M would like the Council to compensate her for the stress these faults caused.

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The Ombudsman’s role and powers

2. 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)
3. Once 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

4. I have considered information provided by Mrs M and the Council. I invited Mrs M and the Council to comment on my draft decision.

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What I found

5. Mrs M’s son, B, has autism. He has an Education, Health and Care (EHC) Plan maintained by the Council.
6. Mrs M asked the Council for help in August 2019. The Council undertook a children and family assessment and agreed direct payments for 8 hours of support per week.
7. Mrs M says she struggled to find a carer to provide support using the direct payments. As a result, she did not spend all the money.
8. When B returned to school after the first ‘lockdown’ in 2020, the Council reduced B’s support to 4 hours per week. Mrs M complained about the reduction, and the Council reinstated 8 hours of support per week.
9. The Council reviewed B’s support again in October 2020 and reduced the offer to three hours per week. Mrs M complained, and the Council increased the offer to four hours per week in term time, and eight hours in the school holidays.
10. In June 2021, Mrs M appealed sections D (social care needs) and H (social care provision) of B’s EHC Plan to the SEND Tribunal. These sections of B’s Plan were blank.
11. The Tribunal recommended six hours of support per week. The Council decided not to follow the Tribunal’s recommendations. Mrs M complained, and the Council offered four hours support in term time and eight hours in the school holidays (again).
12. Unhappy with the support offered, and her dealings with the Council, Mrs M made a formal complaint. The Council responded at the first two stages of the statutory children’s complaints process. This is a formal procedure, set out in law, which the Council must follow for certain types of complaints. It involves an investigation by an independent investigator at the second stage. The independent investigator upheld four of Mrs M’s seven complaints and partially upheld one more.
13. The independent investigator found the recording of child in need meetings had been poor; the Council had not explained how it calculated the number of hours of support offered; social care had not engaged with Mrs M’s appeal to the SEND Tribunal; there had been delay in paying and backdating payments following an earlier complaint; and the Council should have undertaken a re-assessment when Mrs M requested one.
14. The Council accepted the independent investigator’s findings.
15. However, the investigator accepted the Council’s assertion these failings had not influenced the amount of support Mrs M received.
16. The independent investigator recommended the Council consider redress, in line with the Ombudsman’s guidance, for Mrs M’s time and trouble bringing her complaint. The Council declined.
17. Unhappy with the Council’s response, Mrs M complained to the Ombudsman.

Social care support for disabled children

18. Councils have a duty to assess the needs of disabled children. They have a duty to provide support if they consider it ‘necessary’.
19. In making a decision, the council must act rationally, follow agreed procedures which are explained to the family and give clear and logical reasons for its decision.
20. Any support should be set out in a care plan. A care plan describes the services that will be provided to meet the child’s needs. The courts have said a care plan must specify “how, who, what and when” in respect of meeting assessed needs.
21. Councils can offer money instead of services so parents can arrange the support themselves. This is known as ‘direct payment’. The payments must be enough to meet the cost of the services the Council has decided are necessary.

Consideration

22. I am satisfied the independent investigator carried out a thorough and fair investigation. She heard from both sides and presented her findings in a detailed report. However, I do not agree with all her conclusions.
23. In respect of the number of hours of support the Council provided, which varied between three and eight hours per week, her report says she was, “unable to identify any evidence that clearly demonstrates how decisions were made.”
24. Nevertheless, the independent investigator accepted the Council’s assertion these failings had not influenced the amount of support Mrs M received.
25. Without evidence, I cannot reach that conclusion. The Council’s offers of support appear arbitrary. Nowhere has the Council explained how it decided how much support to offer.
26. The account given by the manager who sat on the “panel” which made the decisions does not explain how decisions were made. He said the Council considers the support available to the family, and “[w]e then step back to see if we can helpfully add - what is a reasonable level of support we can offer?” While he noted families often disagree, he said, “Our perception is that the packages we offer will meet need.”
27. After the interviews, the investigator wrote to the manager to ask him to explain the decisions. He did not reply.
28. There were no written records of the panel meetings.
29. The same manager said in respect of Mrs M’s request for a new assessment, “I cannot see how a new assessment will help the family. If she continues to insist, I suppose we’d have to agree, but it’s a huge time commitment and we are understaffed and we know what the needs are.”
30. The problem was not the Council’s understanding of B’s needs, it was the Council’s failure to explain how the support it offered would meet those needs.
31. The Council sent me the assessments and minutes of the review meetings for B’s case since August 2019.
32. The Council decided B needed support to access activities outside the home, both for his benefit and to give some respite to Mrs M. The Council offered direct payments: money so Mrs M could buy support herself. The assessments do not explain how the Council decided how much support to offer.
33. Further, I cannot see from the evidence how the Council considered the “how, who, what and when” in respect of meeting B’s needs when offering support. Although the support plans are written in tables with columns headed, “What do we need to do?”, “By whom?” and “When?”, the entries do not show the Council considered these questions. For example, when Mrs M said she would like B to attend particular activities, the support plans say, “Mrs M to review the recent change to the care package to see if this would already be covered.” This appears to be ‘back to front’. The care package should be based on B’s needs. The Council, not Mrs M, should decide whether the care package meets B’s needs.
34. The Council offered a number of “hours” of direct payments. This is a poor description, since what the Council offered was an amount of money, not a number of hours. This caused problems, since Mrs M was unable to find a carer to support B at the hourly rate paid by the Council. When she eventually found a carer, the cost was twice the Council’s hourly rate. This demonstrates the importance of the Council considering “how and who”.
35. Mrs M also struggled to find suitable activities for B. While the flexibility offered by direct payments is one of their advantages, they will not be effective if a parent cannot find suitable activities. This demonstrates the importance of the Council considering “what and when”.
36. The Council accepted it had not handled Mrs M’s case well and described its failings as ‘failings in communication’. I think the problem is more than poor communication. The Council cannot demonstrate it considered how the support it offered would meet B’s needs.
37. On the evidence seen, it does not appear the Council has acted rationally, followed agreed procedures which were explained to the family and given clear and logical reasons for its decisions.
38. Each time the Council reduced B’s support, Mrs M complained and the Council changed its mind. Mrs M should not have had to complain to be offered appropriate support. While it is good the Council took account of Mrs M’s views and changed its offer, it still failed to make rational decisions and provide clear explanations.
39. Mrs M described the stress and frustration of dealing with the Council in connection with the direct payments. The independent investigator upheld most of her complaints. She recommended the Council consider redress, in line with the Ombudsman’s guidance, for Mrs M’s time and trouble bringing her complaint.
40. The manager responsible for the payments said, “I think that the support we’ve offered is the right support. I do get [Mrs M’s] frustrations, but does that mean it led to the wrong outcomes? I am not sure that it does. I don’t think it therefore means we should be providing financial recompense.”
41. The Council accepted his views.
42. I disagree.
43. I consider fault by the Council has caused Mrs M injustice and the Council should offer a symbolic payment by way of redress.
44. The Council’s failure to properly plan B’s care (its failure to address “how, who, what and when”) is at the root of the injustice. It is not just a question of communication. The Council offered “hours” of support without checking the money it provided would actually secure the support B needed. The reductions in the number of “hours” offered, only to be reversed when Mrs M complained and the Council re-evaluated B’s needs, further demonstrate the Council’s failure to properly plan B’s care.
45. If the Council had acted rationally, followed agreed procedures which were explained to the family and given clear and logical reasons for its decision, it would be able to demonstrate it had provided appropriate support.
46. These failures caused Mrs M considerable frustration. She went to considerable time and trouble in complaining to the Council. Further, the Council’s failure to properly plan B’s care will understandably cause her to question whether B received the right level of support. There is little evidence to support the Council’s assurances he did.

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Agreed action

47. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Mrs M and B, we may recommend the Council makes a symbolic payment.
48. I recommended the Council apologises and offers Mrs M a symbolic payment of £500 for the injustice I have identified and her time and trouble pursuing her complaint. I recommended the Council makes the payment within six weeks of my final decision.
49. We can also make recommendations to ensure similar faults do not happen in the future.
50. I recommended the Council reviews its processes to ensure in future it acts rationally, follows agreed procedures which are explained to the family and gives clear and logical reasons for its decisions when considering requests for social care support. The Council should write to us within two months of my final decision to explain what action it has taken.
51. The Council should provide us with evidence it has complied with the above actions.
52. The Council accepted my recommendations.

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Final decision

53. I have completed my investigation as the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman