Summary: The Council took too long to assess a child’s needs; it was not clear with the family what support it would offer; and it did not provide all the support it agreed. The Council did not always communicate clearly, and did not always give clear reasons for its decisions. The Council took too long to deal with the mother’s complaints about this. This caused the family distress and uncertainty and means the child has missed out on support she is entitled to. The Council has agreed take action to remedy the injustice.

The complaint

1. Mrs B complains that the Council:
• Took too long to assess her daughter’s social care needs;
• failed to properly assess her daughter and it was not clear from the assessment what support would be funded and how this would be arranged (eg via direct payments or commissioned services); and
• it failed to provide interim support when the assessment was delayed and it had not met all the assessed needs.
2. Mrs B says that the Council’s failings have caused her distress and frustration. She has been put to significant time and trouble trying to progress the issues or get clarification from the Council. Mrs B says that her daughter has missed out on the support she is entitled to.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I considered the information provided by Mrs B. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken into account the comments of both parties before reaching this final decision.

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What I found

The law and guidance

The Council’s duties towards disabled children

6. The Children Act 1989, section 17, 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 regarded as ‘children in need’ and entitled to an assessment under section 17.
7. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in section 2. Services which can be provided under section 2 CSDPA include:

• practical assistance in the home including home based short breaks / respite care;
• recreational / educational facilities including community based short breaks; and
• travel and other assistance.

8. The expectation of ‘Working Together’ is that an assessment which identifies significant needs will generally lead to the provision of services, but it not the case that there is a duty to meet every assessed need. Whether a service is required is dependent 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 of the Children Act.
9. If a council is satisfied it is ‘necessary’ to provide support services under section 2 of the CSDPA then services must be provided regardless of the council’s resources.
10. Assessments should take account of the needs of the whole family. While some services may be offered directly to the disabled child, services may also be offered under section 17 to parents or siblings.

Direct payments

11. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
12. The gateway to receiving a direct payment must always be through the request from the person. Councils must not force someone to take a direct payment against their will. They should not place someone in a situation where a direct payment is the only way they can get personalised care and support.

The statutory complaints process

13. 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. We also published practitioner guidance on the procedures, setting out our expectations.
14. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
15. 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 investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
16. Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
17. 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 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.
18. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
19. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.

What happened

20. Mrs B has two children and both are disabled. This statement sets out my findings of Mrs B’s complaint that the Council has not properly assessed her daughter, K, or done anything to meet her needs. K’s sibling is severely disabled and has his own assessment and care package. This is a summary of the most relevant events and not an account of everything that has happened.

The original complaint to the Council

21. In February 2023, Mrs B complained to the Council about various failings relating to both children. With regard to K, Mrs B complained that she had asked the Council to assess K’s needs for many years. The Council had agreed to complete an ‘early help’ assessment, but it had not done this. An ‘early help’ assessment is an assessment of the risks to a child and how harm can be prevented. Early help would typically be met by general services aimed at improving outcomes for all children eg health visiting and youth services. Mrs B said the Council had overlooked K’s needs as her siblings needs are greater.
22. The Council responded at the beginning of March 2023. It agreed that it had failed to assess K’s needs. It said it would do an early help assessment. It apologised for its failure and offered to pay K £500 in recognition of the impact on her, and £500 to Mrs B in recognition of the impact on her of failings related to K and also to her disabled sibling.
23. Towards the end of March 2023, Mrs B asked the Council to consider her complaint at stage two of its process. She said the Council’s apology did not practically account for the impact of the failures. Mrs B said that the Council had not contacted her about K’s early help assessment, but also that this type of assessment would not result in any provision for K as a disabled child. Mrs B asked the Council to also reconsider its findings about her complaints relating to her other child.
24. The Council arranged for a stage two independent investigation. The stage two Investigating Officer’s (IO’s) report is dated September 2023. The IO found:
• Contrary to its earlier response, the Council had assessed K’s needs in July 2022.
• The Council’s case recordings show that its social worker visited the family at home in April 2022. In June, the Council decided that K could be supported via community services and did not need a referral to the disabled child team.
• However, the IO found that the Council had not shared a draft or the final assessment with Mrs B. Also, the Council did not rectify this when emails from Mrs B made clear she was unaware there had been any assessment.
• K has a privately obtained diagnosis, but Mrs B had questioned whether the Council had ignored this because it was privately obtained and not from the NHS. Mrs B considered that K needs an assessment and an Education Health and Care Plan.
• The IO found that the Council would accept a private diagnosis but any diagnosis does not guarantee services will be provided. The IO acknowledged that the Council had recorded in its case notes that K did not meet the criteria because the diagnosis was not from the NHS, but this did not represent the Council’s position and there was no evidence that this had led it to deny K services she was entitled to. The Council did view K as a disabled child but she was not entitled to services.
• The IO found that the Council had included Mr and Mrs B in K’s assessment but had not properly consulted them, and that it had taken too long to complete the assessment.
• The IO recommended that the Council apologise to Mrs B.
25. The Council apologised to Mrs B for not sending K’s assessment when it was completed in July 2022, and agreed that communication with the parents around the assessment could have been better.
26. Mrs B asked the Council to proceed to stage three of the statutory process. With regard to her complaints that the Council had not supported K as a disabled child. Mrs B said the Council’s response again did not fully acknowledge the impact of multiple failings (some of which related to K’s siblings needs) on each member of the family.
27. The stage three panel considered the complaints. It found:
• a private diagnosis is accepted by the Council and concerns that a social worker had mistakenly stated that K would need an NHS diagnosis could have been expressed more strongly.
• Mr and Mrs B had not seen a draft of K’s 2022 assessment and so could not challenge or clarify any inaccuracies. The Panel would expect the Council to have done more to assess K and the contact it had with the family was not appropriate to conduct a good quality assessment. The Council should have sent Mr and Mrs B a draft of the assessment for their comment.
• It would have been more accurate to say that it could not make a finding as to whether the Council had failed to recognise K as a disabled child because the investigation had relied on file records, whereas Mrs B said she had raised these concerns based on conversations over a period of time.
28. With regard to the complaints about K, the Panel endorsed the IO’s recommendations and added recommendations relating to K’s sibling but did not add any extra recommendations for K. At the beginning of January 2024, the Council wrote to Mrs B agreeing with the Panel’s findings.

The 2023 assessment for K and the later complaint

29. In the meantime, the Council had received a referral from the social worker for K’s sibling. The social worker was concerned that K might have unmet need and there was pressure on the whole family. In August 2023, the Council completed a single assessment for K. The Council had spoken to both of K’s parents and also sent them questions to complete in their own time. This was to make sure that the Council had the parents views and to take account of the high demands on their time. Relevant to my investigation the Council’s assessment found that:
• K was home educated and attended a regular therapeutic gaming session online paid for by Mrs B. The Council’s assessment said it should consider the benefits of this and whether it should fund this.
• K and the family would benefit from respite.
• There are no concerns about Mrs B meeting K’s basic needs and keeping her safe in a nurturing environment. K is a child in need due to her disability. It will refer K to its Disabled Child and Young Person Service to progress a support plan.
30. The Council’s case notes show that the assessment was signed off by a manager in August 2023. It had decided that K is a child in need and the Council visited K every four weeks as required. But the Council did not refer K to the Service until the beginning of October and did not share the assessment with Mrs B until the end of October.
31. At the end of October, the Council sent Mrs B K’s assessment completed in August 2023. The Council told Mrs B that it would consider respite, funding for K’s therapeutic gaming sessions, and consider supporting an educational psychologist’s assessment for an Education Health and Care Plan.
32. Mrs B complained to the Council about the assessment. She said it was inaccurate, most of the information in the assessment had been provided by them, and there was no clear statement about what the Council might offer in support.
33. The Council started regular visits to K as a child in need. The case notes show that in October the Council discussed the 2023 assessment with Mrs B. It agreed that K needed a package of support in her own right and the Council will present a support plan to its resource panel to approve funding this.
34. Mrs B asked what support K would get. She asked for interim support in the meantime and whether she could use the sibling’s direct payments account to pay for art therapy for K. By December, the Council had not sent her a support plan nor told her what it was asking the resource panel to fund. The Council told Mrs B that she could not use the sibling’s direct payments.
35. In December 2023, the Council’s panel approved two hours of K’s therapeutic gaming sessions per week, and eight hours of 1:1 support via the same provider that supported her sibling. Mrs B pointed out that the Council had taken a long time to do the assessment. She asked the Council to reimburse her for the gaming sessions she had paid for. The Council agreed this in mid-January 2024.
36. In January 2024, the Council responded to Mrs B’s complaint about K’s 2023 assessment. The Council agreed that it had taken too long to complete the new assessment and to share it with her, and this was unacceptable. It would only provide interim support where there was emergency and this was not the case. The Council offered to meet Mrs B to discuss the assessment.
37. The case notes show that Mrs B asked for clarity about direct payments to pay for the gaming sessions. The Council had not set these up and so Mrs B resorted to using the sibling’s account for these. By the end of February 2024, the support worker was not in place and the Council had not reimbursed Mrs B for the gaming sessions she had paid for.
38. The case notes show the Council had been liaising with the care provider but it had decided it could not support the family. It had also been discussing whether it could make direct payments for the support or whether this should be commissioned.
39. In March 2024, K started art therapy and Mrs B again asked if she could have direct payments for this as the intended support had not been commissioned by the Council. Also, Mrs B had reimbursed herself from the sibling’s direct payment account because the Council had not paid her for the therapeutic gaming sessions she had already funded.
40. By April, Mrs B told the Council that it had failed to provide the agreed support for K. It had not commissioned the weekly support and had not set up direct payments for the therapeutic gaming sessions, nor reimbursed Mrs B for the money she had already spent on this.
41. By July, the Council still had not set up the direct payments for the therapeutic session, it thought that it had paid the backpay into the sibling’s account but this was not clear, and it had not commissioned the support. During this time, Mrs B had told the Council that she would be happy with a commissioned service, direct payments, or an account managed by a care provider.
42. There had also been some confusion about the amount of funding that Mrs B could expect for K’s 1:1 support. The Council had agreed to commission eight hours of support at £25 per hour. However, it later confirmed that if the support was paid for by direct payments, K would receive £13 per hour. Mrs B said this was not enough and she had been paying £40 per session for art therapy as the Council had failed to make direct payments nor commission support.

Analysis

43. Some of Mrs B’s complaints have been considered at all three stages of the statutory complaints process. This process includes independent scrutiny by the IO and the panel. There is no fault in how the process reached findings on those parts of the complaints relating to K’s assessment and support. For this reason, there is no basis for me to re-investigate those complaints already considered by the complaints process.
44. The Council has acknowledged that it took too long to complete the statutory complaints process. It has apologised to Mrs B for this.
45. The Council’s adjudication at stage two and three agreed with the findings and recommended remedies of an apology and a symbolic payment to recognise the distress and frustration the Council’s shortcomings have caused.
46. I would add that Mrs B did not know that the Council had completed an assessment in 2022. This put her to unnecessary time and trouble pursuing an assessment and challenging the Council’s decision not to offer support services via its disabled child team.
47. The Council also took too long (from October 2023 to January 2024) to decide Mrs B’s later complaint about the 2023 assessment.
48. The Council has acknowledged that it took too long to complete the 2023 assessment and too long to share this with Mrs B. But there was fault by the Council in the assessment and support planning itself because it had insufficient regard for the outcomes of the assessment.
49. The Council visited K regularly as a Child in Need, but it did not progress to a support plan between August and October. It did not share a clear support plan with Mrs B based on the assessment. By December, the Council still had not clearly told Mrs B what support K could expect and what it would ask its resource panel to fund.
50. The Council’s assessment identified that K had a need for respite care. Mrs B asked about respite on several occasions but the Council failed to address her enquiries. In response to a draft of this statement, the Council has explained that the ten hours of support agreed for K is her respite care, as this gives respite to both K and her parents. There is no indication on the file that the Council explained this to Mrs B or K.
51. The Council has failed to commission the support to meet K’s needs. Mrs B was happy to have a commissioned service for K’s 1:1 support. The Council identified the care provider in December and contacted it. It seems from the case notes that around February and March, there was a disagreement between the family and this provider, but the Council did not seek an alternative provider.
52. Instead the Council offered Mrs B direct payments to pay for K’s 1:1 support. There was further fault in how the Council handled this aspect of the direct payments. The Council was not clear about the rate of the direct payments for the 1:1 support. The Council’s case notes say that it had agreed the rate at £25 per hour. The Council later told Mrs B that this would be £13 per hour. I understand that the difference in hourly rate is a difference between the commissioned service and a personal assistant paid by direct payments. I cannot see that this was clearly explained to Mrs B.
53. The Council can decide a suitable rate of direct payment to allow Mrs B to purchase support for K, but as this support is not clearly set out in the assessment, I am not persuaded that it has justified refusing Mrs B’s requests to increase the hourly rate so that she can find a suitable support worker for K.
54. The Council also took too long to set up direct payments for the therapeutic gaming sessions, and was not clear in its communications about this. In January 2024, the Council agreed to backdate the payments to reimburse Mrs B for the sessions she had already paid for. But in May 2024, the Council was still not clear whether it has paid the back pay into K’s sibling’s direct payments account.
55. In response to a draft of this statement the Council has confirmed:
• It has now set up K’s direct payment account and Mrs B has returned the necessary paperwork for this to be paid.
• It agreed to fund ten hours of support for K per week with effect from June 2023. This now consists of creative therapy and therapeutic gaming sessions already arranged by Mrs B totalling four hours, leaving six hours per week that will be provided by a support worker. The worker can be chosen by Mrs B and paid via direct payments, or the Council can commission the support.
• The weekly therapeutic sessions built up over time. It started with two hours agreed in December 2023 this was paid directly by the Council on invoices Mrs B submitted. The Council delayed in making payments but paid a lump sum in April 2024. This brought these payments up to date to May 2024 and a further payment has been approved but not made to fund the sessions from June 2024 to September 2024. Ongoing payments will be made direct to the provider by the Council.
• A third hour was added in May 2024, and a fourth in August 2024. The Council will backdate payments for the fourth hour from August 2024 to date.
• The 1:1 support for the remainder of the ten hours agreed has not been in place. The Council will make a payment to cover what should have been in place with effect from June 2023.
56. The Council also was not clear in how it would fund the ongoing therapeutic gaming sessions. I appreciate that the Council has to do its due diligence to make sure that the provider is fit to receive funding, but the lack of clarity left Mrs B with unpaid invoices, some of which she paid from her son’s direct payment account. Mrs B says that at one time, the Council expressly told her to make payments from K’s brother’s account despite that this is not allowed.
57. Mrs B asked the Council for interim support and it refused because there was no urgent need. Interim support might be needed while the Council assesses need and makes a support plan. The issue here is not that the Council refused interim support but that it did not progress or provide the support it had agreed to meet K’s assessed needs.
58. Mrs B is autistic and needs reasonable adjustments under the Equality Act 2010 to make sure she can access the Council’s services. Mrs B’s reasonable adjustments include that the Council use clear and unambiguous language and do not call her without arranging it first. The Council took account of Mrs B’s needs when it sent her questions in advance as part of K’s 2023 assessment. The Council was aware that it should not telephone Mrs B without prior arrangement. Mrs B has sent me emails where it is clear that his happened. Moreover, the Council’s communication was not always clear and unambiguous and this added to Mrs B’s distress and failed to take proper account of the Council’s duties under the Equality Act.
59. Mrs B asked the Council to reimburse her for the educational psychologist’s report that she paid for. Although the Council’s delay in assessing K means it is understandable that Mrs B might seek a private assessment, the Council did not need an educational psychologist’s report to properly assess K. This means I cannot recommend that the Council reimburse Mrs B the cost of this.
60. The Council’s shortcomings have caused Mrs B significant distress and uncertainty. It has left her frustrated and put her to time and trouble trying to resolve the issues.
61. K has also missed out on support to which she is entitled. The Council has backdated the cost of the therapeutic sessions and will continue to fund these. It has also agreed to backdate direct payments for support from June 2023 to date.
62. However, the 2022 assessment process was flawed and so the Council cannot rely on its conclusion that K was not entitled to directly provided support. On the balance of probabilities, it is more likely than not that K would have been entitled to some support sooner had the Council properly assessed her in 2022.

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Agreed action

63. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
64. The Council will within one month of the date of this decision:
• Apologise to Mrs B, and if she thinks it appropriate apologise separately to K. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Make a symbolic payment to Mrs B of £500 in respect of the distress and uncertainty its shortcomings caused her.
• Make a symbolic payment to Mrs B of £200 in respect of the time and trouble she was put to and the additional frustration and distress she was caused by the Council’s delays in its complaints handling.
• Make a symbolic payment to Mrs B of £850 in respect of the support K has not received due to delay and a lack of progress by the Council from July 2022 when she was first assessed to June 2023 when a new assessment was completed. Mrs B can use this money to support K as she sees fit. This payment should be made directly to Mrs B and not to the direct payment account.
• Ensure that the funding is in place for the ongoing therapeutic gaming sessions.
• Share this decision with the relevant staff.
65. Within two months of the date of this decision, the Council will:
• ensure that the 1:1 support is put in place (either by a commissioned service or by direct payments). This includes if necessary, properly reviewing whether the direct payment rate is sufficient to employ a support worker for K.
66. Within six months of the date of this decision, the Council will:
• ensure a copy of our final decision is considered by relevant Members. The Council has suggested that the final decision is shared as part of a safeguarding meeting of Members.
67. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. I have completed my investigation. There was fault by the Council causing injustice to Mrs B and K.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman