Summary: The Council properly assessed Y following an investigation under the children’s statutory complaints procedure. But it failed to properly explain the outcome of its assessment causing Mrs X uncertainty and distress. It also delayed issuing its stage two response to Mrs X causing further uncertainty. The Council was under no duty to provide Mrs X with direct payments as it assessed Y as having no unmet needs. The Council has agreed to apologise to Mrs X, make a payment to her and rewrite its assessment of Y. It will also develop an action plan to address the failings in how it wrote Y’s assessment.

The complaint

1. Mrs X complained the Council failed to properly assess her child, Y, under Section 17 of the Children Act following an investigation under the children’s statutory complaints procedure. She also complained the Council failed to properly consider her request for direct payments. She wants the Council to properly assess Y and award direct payments to meet their needs.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Children in need

9. 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.
10. 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.
11. 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.
12. The Courts have found (R (L and P) v Warwickshire CC, 2015) that not every disabled child will necessarily require a full assessment by a social worker. Those with lower-level needs may be assessed via Early Help. Councils should be able to demonstrate how they have determined the level of need.
13. Parents/carers of disabled children can ask for a direct payment (DP) to meet the needs of the child. The council must carry out an assessment and DPs must be sufficient to meet the assessed needs. DPs must be used by the parent/carer to meet the child’s needs. DPs do not affect any benefit entitlement.

The Council’s assessment process

14. The Council has a graduated approach to ensure it meets the needs of disabled children and their families. This comprises universal support in the community, targeted support via its local offer, and specialist support for children whose needs it cannot meet via universal services or its local offer. Specialist support is accessed via an assessment.
15. The Council carries out needs assessments under section 17 of the Children Act for any disabled child. Following an assessment the Council applies eligibility criteria to decide if the child has eligible needs and how it will meet those needs. The Council scores a child’s needs against a range of criteria and considers this alongside the severity of the child’s needs and whether they can be met by family and universal services.

Children’s statutory complaint procedure

16. 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.
17. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
18. 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.
19. 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.
20. The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days where required. 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.
21. The Ombudsman would normally expect a council and complainant to follow the full complaints procedure. The guidance sets out the circumstances in which a complaint can be referred to the Ombudsman without completing all three stages. This can only happen when the stage two investigation is robust with all, or all significant complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.
22. 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.
23. 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

24. The following is not intended to be a full account of everything that happened in this period, nor does it refer to all the records I have considered. It is a summary of the key events and facts relevant to this complaint.
25. On 31 July 2023 Mrs X complained to the Council. She said it had refused to assess Y under section 17 of the Children Act. Following Mrs X’s complaint, the Council agreed to carry out an assessment of Y. The Council responded at stage one of the statutory children’s procedure on 31 August 2023. It accepted it should have assessed Y before Mrs X complained and said an assessment was underway. The Council did not uphold Mrs X’s stage one complaint.
26. The Council completed its assessment in September 2023. It said Y “may” benefit from support from the children with disabilities team but did not meet the team’s threshold for support. It recommended several universal services in the community to support Y and closed the case. Mrs X remained unhappy and asked for a stage two investigation.
27. The Council appointed an investigating officer and independent person on 13 November 2023. They met with Mrs X and defined the complaint as, the Council:
• Declined to assess Y.
• Wrongly advised Mrs X that Y did not meet the threshold for support.
• Failed to carry out a carer’s assessment of Y’s sibling, W.
• Closed Y’s case when Y had unmet needs and failed to share the report.
• Failed to use a suitably qualified person to assess Y.
• Failed to carry out a parent carers assessment.

Mrs X said she wanted the Council to apologise, assess Y and provide them with support, and carry out a parent carer’s assessment.

28. The investigating officer issued their report on 26 January 2024. They said they could not make a finding on whether the Council shared the original assessment with Mrs X but upheld the rest of Mrs X’s complaints. The investigating officer found the Council had failed to recognise Y’s right to a section 17 assessment regardless of whether they met the criteria of the children with disabilities team. It then failed to ensure they received the right support following the assessment. They recommended the Council:
• Apologise to Mrs X.
• Remind its social workers of the local offer available for children with disabilities.
• Consider whether it needed to review its model to ensure the Council’s children with disabilities team was not the only route to assess disabled children.
• Remind staff a section 17 assessment is a statutory responsibility.
• Share the original assessment of Y with Mrs X.
• Consider carrying out a new assessment of Y under section 17 of the Children Act, considering W’s and Mrs X’s caring roles.
29. The Council issued its stage two adjudication on 14 May 2024. It said it had shared the original assessment and did not uphold that part of Mrs X’s complaint. It agreed with the investigating officer’s other findings. It said it would arrange a new assessment. It also said it would ensure it shared the findings with staff. It said that work was already underway to improve staff understanding of the section 17 assessment process and the role of the children with disabilities team.
30. The Council started a new assessment a few days later. It visited Mrs X and Y at home, and Y at school. The Council completed its assessment on 16 July 2024. The assessment said the family “needed support” but its short-term intervention team had no resources, and Y did not meet the criteria for the children with disabilities team. It said it had provided a list of universal services, but Mrs X had struggled to access these. The scoring record for the assessment shows Y’s and Mrs X’s family’s needs could be met through universal services or the Council’s local offer. The Council closed Y’s case. Mrs X remained unhappy and complained to the Ombudsman. We accepted the complaint as an early referral under the statutory process.
31. In response to our enquiries the Council accepted the wording in its assessment could have been clearer. It confirmed it had assessed Y’s needs as able to be met by their family or through universal services. It also confirmed Y was not a Chronically Sick or Disabled Child. It confirmed that Y had no unmet needs and so could not access direct payments.
32. The Council also said it had worked with its teams since June 2023 to clarify their understanding of its duty to assess disabled children, each team’s role, and access to universal services.

My findings

33. The Council investigated Mrs X’s complaint under the statutory children’s complaint process. I have not re-investigated the Complaint. I have looked at whether there were any significant flaws in the complaint process and whether the Council properly considered the findings and recommendations of the independent investigation.

The Council’s handling of Mrs X’s complaint

34. In its stage one response the Council accepted it should have assessed Y sooner. Despite this it did not uphold Mrs X’s stage one complaint. This was fault and caused Mrs X uncertainty over the findings of her complaint.
35. The Council had a maximum of 65 working days to issue its stage two adjudication. It is not clear when Mrs X asked for a stage two investigation, but the investigating officer delivered their stage two report 52 working days after the Council appointed them. The Council took a further 76 working days to issue its adjudication. Regardless of when Mrs X asked for a stage two, the Council therefore delayed issuing its response. This was fault and caused Mrs X uncertainty and frustration.

Recommendations from Mrs X’s complaint

36. In its stage two adjudication the Council agreed to carry out the recommendations from the stage two report. This included a new assessment of Y, and using the learning from Mrs X’s complaint to review its assessment model.
37. The Council’s original assessment said Y had unmet needs, while the Council’s stage two adjudication agreed the Council had failed to decide how Y’s needs could be met when the assessment had identified unmet needs. The new assessment similarly said Mrs X’s family “needed support”. It again said the Council did not have the resources to provide this, and Y did not meet the threshold for support from its children with disabilities team.
38. The Council has issued two assessments now which suggest Y has needs and the only reason it cannot meet these needs is its lack of resources. In its response to our enquiries the Council clarified that Y did not have unmet needs and its assessment could have been clearer. The Council’s assessment scoring supports its view that Y’s needs can be met with universal services in the community.
39. The Council’s position appears as confused as it was before Mrs X’s complaint, and the work the Council says it has undertaken with its staff since June 2023. Despite accepting the stage two findings and upholding Mrs X’s complaint, the Council’s communication about its new assessment was as unclear as the first. This was fault and caused Mrs X further distress, frustration and uncertainty as the Council repeated the failings of its original assessment.
40. While the language in the new assessment was unclear, I am satisfied, on balance, the Council properly assessed Y’s needs and decided these could be met through universal service. In making its decision the Council took account of the relevant guidance, information from Mrs X and its own policies. The Council followed the proper procedures when making this decision and I cannot therefore criticise it or say it should have reached a different outcome.
41. The Council has given details of the work it has done with its teams to clarify its assessment process and the role of the children with disabilities team. On the evidence of this complaint the Council still has work to do in this area. The new assessment remains focused on the availability of resources and the threshold of the children with disabilities team, and not Y’s needs as it is required to be legislation and policy.

Direct payments

42. Councils issue direct payments to meet the assessed needs of children. As the Council assessed Y as having no unmet needs, it was under no duty to arrange direct payments. The Council is not at fault.

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Action

43. Within one month of the final decision, the Council has agreed to:
1. Apologise to Mrs X for the delay in responding to her complaint and its failure to properly carry out a new assessment of Y. 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.
2. Pay Mrs X £200 to recognise the uncertainty, frustration and distress of repeating the failings in its assessment.
3. Appoint a senior social worker to re-write Y’s assessment so it focuses on Y’s needs and not the availability of council resources.
44. Within three months of the final decision, the Council has agreed to:
1. Develop an action plan to address the persistent confusion over the explanations it gives to parents concerning its assessment processes and how it meets a child’s eligible needs, regardless of resource or the thresholds of the children with disabilities team. The Council should share a copy of the action plan with the Ombudsman.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman