Summary: Mrs X complained the Council failed to properly assess her child D’s eligibility for overnight respite care through its disabled children’s service. The Council made its decision properly that D should receive daytime short breaks but not overnight respite. However, it was at fault because it delayed its assessments and failed to consider Mrs X’s complaint via the statutory complaints procedure for children’s social care services. This caused a delay in D receiving daytime short breaks, and avoidable time and trouble for Mrs X. The Council agreed to apologise and pay a financial remedy. It will also issue reminders to its staff and review its processes.

The complaint

1. Mrs X complains the Council failed to properly assess her child D’s eligibility for overnight respite care through its disabled children’s service in 2023. She says it did not consider her needs as a parent carer with her own disabilities, and did not properly explain its decision.
2. Mrs X says the Council’s wrong decision caused distress to her and her husband, and worsened their existing mental health problems. She wants the Council to properly explain its decision and assess the family again to ensure they receive the overnight respite they need.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. 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)
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)

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How I considered this complaint

8. I considered evidence provided by Mrs X and the Council and relevant law, policy, and guidance.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
10. 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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What I found

Legislation, guidance, and council policies

Children in need and section 17 assessments

11. 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.
12. Statutory guidance ‘Working Together to Safeguard Children’ sets out how councils should carry out section 17 assessments. Where a referral is accepted under section 17 the council should lead a multi-agency assessment and compete it within 45 working days.
13. 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.
14. The expectation of ‘Working Together to Safeguard Children’ is an assessment which identifies significant needs will generally lead to the provision of services, but it is 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.
15. 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; and
• recreational / educational facilities including community based short breaks.
16. 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.
17. 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.

Parent carers

18. The Children Act 1989 (Schedule 2 paragraph 96)(1)(c)) and Breaks for Carers of Disabled Children Regulations 2011 requires councils to provide a range of services designed to assist family carers of disabled children to continue to provide care, or to do so more effectively, by giving them breaks from caring. These services must include a range of daytime care, overnight care and leisure activities. This range of services must be set out in a ‘short breaks statement’ and include details of any eligibility criteria.
19. The Children Act 1989 (as amended by the Children and Families Act 2014) places specific duties on councils to assess the needs of carers with parental responsibility for disabled children as well as young carers. Councils have an obligation to assess parent carers on the ‘appearance of need’ (Children Act 1989, section 17ZD/E), or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.

The Council’s children with a disability service – eligibility criteria

20. The Council has eligibility criteria for its Children with a Disability Service. This says there are four levels of support available:
• Universal services and advice. Support which is available to all children and families in the Council’s area, such as support from their school or GP, or a local activities club. No assessment is needed to access universal services.
• Getting help. Further support for families, such as aids and adaptations, further advice/ signposting, or community activities to allow a break for parents. The Council’s Early Support (early help) team will manage this, but an early help assessment will not necessarily be offered.
• Getting more help. Support for families with a disabled child who need more, targeted support, such as short breaks provision. The Council will undertake an early help assessment to decide if its Children with a Disability Service should provide services.
• Getting risk support. Where the Council considers a family is at risk of breakdown, a child is at risk of harm, or the situation is complex, it will carry out a section 17 assessment by a social worker. This may result in a Child in Need Plan. Support offered to families could include access to specialist care providers for overnight or weekend respite care.

The Council’s assessment process for disabled children

21. The Council’s policies for children’s social care assessments set out the following process.
1. Initial contact. When the Council receives contact about a child, who may be a child in need, with a request for a service, it must decide the response needed within 24 hours. If it decides it may need to carry out an assessment or provide services for a child in need, it will progress the case to “referral” stage.
2. Referral. Once accepted as a referral, the Council should decide next steps and assign a lead practitioner within one working day. Next steps could be an early help assessment, or a section 17 assessment by a social worker.
3. Assessment. A child in need (section 17) assessment should take no longer than 45 working days from the point of referral. It will involve drawing together and analysing available information from a range of sources, including the child and family, and any relevant professionals in contact with the family.

The statutory complaints procedure for children’s social care services

22. 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.
23. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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, we expect people to complete the statutory complaints procedure before we will consider whether there were any flaws in how the Council investigated their concerns.
29. The Ombudsman would normally expect a council and complainant to follow the full statutory complaints procedure. The statutory guidance says where a council has accepted a complaint at stage 1, the complainant is entitled to pursue it through stages 2 and 3 if they remain dissatisfied, except in specific circumstances. It also sets out certain circumstances in which the Ombudsman can accept an “early referral”. However, this is only after a council has properly considered the complaint at stage 2 and upheld all parts of it.

Background

30. Mrs X has a child D, who is disabled. From 2022 to 2024, Mrs X had repeated contact with the Council’s Children with a Disability Service to seek advice and support.
31. In October 2022, Mrs X asked the Council to provide the family with overnight respite care for D. She said D had serious sleeping issues and needed constant supervision at night. Due to Mrs X’s physical and mental health issues, she said could not provide any overnight support, which meant it fell entirely to her husband, Mr X.
32. During the period I investigated, the Council carried out three section 17 assessments, as follows.
1. October 2022 to March 2023. The Council decided it should provide the family with nine hours a week of short breaks support, to allow Mr and Mrs X breaks from caring. However, this was daytime support and it did not agree to provide overnight respite. It also made various referrals to other support services.
2. December 2023 to January 2024. After Mrs X complained, the Council decided to carry out a new assessment to address her concerns. This was not because it accepted there was anything wrong with the first assessment, but because time had now passed so it agreed to see if the family’s needs had changed. The Council decided the family should still receive nine hours of daytime support, but not overnight respite.
3. July 2024 to October 2024. After the Council issued its final complaint response, and Mrs X came to the Ombudsman, the Council carried out another assessment. Again, the Council did not accept the previous assessments were wrong. It re-assessed to try to respond to Mrs X’s continuing concerns, and because she had now asked for extra support over the school holidays. Again, the Council decided the family should receive daytime short breaks (plus extra hours of support in school holidays), but no overnight respite.

What I have and have not investigated

33. Mrs X first asked for respite services in October 2022. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons it took them longer to complain. Mrs X first came to the Ombudsman in June 2024, so we would usually only look at what happened after June 2023.
34. I decided there are good reasons to investigate events from October 2022 when Mrs X first asked for respite services, because:
• Mrs X has communication needs and needed to seek help from an advocacy service to make her complaint. This meant it took her longer to complain;
• Mrs X first complained to the Council in August 2023. She was in constant contact with the Council about the issues until it issued its final complaint response seven months later in April 2024 and directed her to the Ombudsman; and
• during the complaints process, the Council agreed to carry out a new assessment in December 2023. I understand why Mrs X did not approach the Ombudsman while the Council was still taking action about the issues she complained about.
35. I can consider any continuing injustice caused by any faults in the Council’s actions before the point Mrs X brought her complaint to us in June 2024. However, I cannot consider new issues which arose after Mrs X came to us. The law says councils must have reasonable opportunity to respond to a complaint before we look at it. After the Council issued its final complaint response, and Mrs X came to the Ombudsman, the Council carried out another section 17 assessment for D. I decided to consider this as part of my investigation because the Council said it carried out this re-assessment as part of its response to Mrs X’s complaint. Therefore, I do not consider it to be a new or separate issue. However, I have not considered any events after 1 October 2024 when the Council completed this re-assessment. If Mrs X wants to complain about more recent events after 1 October 2024, she would need to make a new complaint to the Council first. If she remains dissatisfied following the Council’s response, she could then make a new complaint to us to ask us to consider it.

My findings

The role of the Ombudsman

36. The Ombudsman is not an appeal body. It is not our role to decide whether a child should receive support from social care services, or what level of support they should receive. We investigate the processes a council followed, to assess whether it made its decisions properly. Where a council has followed the law and its own policies, and considered all the information it should have, we cannot question or criticise the Council’s decision simply because a complainant disagrees with it.

The Council’s assessment decisions

37. In each of the three assessments, the Council decided D should not receive overnight respite because it was not in their best interests. As part of its explanation to Mrs X, the Council said it does not generally offer overnight respite to children under the age of eight unless there are exceptional circumstances. Mrs X says the Council could not evidence that it is Council policy that children under eight cannot get overnight respite. However, I do not consider it to be fault that this is not written into Council policy. In fact, I would consider it fault if this was policy, because it would mean the Council applies a blanket rule preventing it from considering individual circumstances and applying discretion. Instead, the Council decided, based on the family’s individual circumstances, that overnight respite was not suitable, partly due to D’s young age and the impact this would have on them.
38. I found no fault with how the Council made its decisions, or explained them to Mrs X. It properly considered all available information, including the needs of Mr and Mrs X as parent carers. There is no fault in how it made its decisions, and I therefore cannot question whether the decisions were right or wrong.
39. In response to our enquiries, the Council said when it carries out an early help or section 17 assessment:
• the assessor will make recommendations;
• a manager will consider the recommendations and provide approval; and
• the Council’s ‘Resource Panel’ (a multiagency decision-making panel) will then consider the case and decide what support the Council should provide.
40. This process is not reflected in the Council’s published policies and procedures, which do not mention a multiagency panel as part of the Child in Need assessment process. In D’s case, the Council says the first assessment was considered by a panel, but it did not keep records of any panel discussion so cannot evidence this took place. Also, Assessments B and C were not considered by a panel at any stage. In D’s case, I decided there was no fault which brings into question the assessment outcomes, because:
• the assessments were carried out in line with national legislation and guidance, and the Council’s published policies, both of which do not require a panel process;
• the Council kept detailed records of each assessment and its decision making; and
• each decision was considered and approved by a manager.
41. However, I consider the inconsistency between the Council’s published procedures, and what it said about its assessment process in response to my enquiries, is fault. I have recommended actions for the Council to address this, to avoid the potential for future confusion about its processes, or inconsistencies in its decision making.

Delays in assessment process

42. The Council did not complete Assessment A within the required 45 working days. It accepted Mrs X’s request as a referral on 13 October 2022 and at first decided it should carry out an early help (not a section 17) assessment. After a visit to the family in November 2022, the Council then decided, based on information Mrs X provided at the visit, it should carry out a section 17 assessment. The Council should have completed this within 45 working days of receiving this information which led it to decide a section 17 assessment was needed. Instead, it took 69 working days to complete the assessment, 14 weeks longer than it should have done. This delay was fault, which delayed the family in receiving daytime short breaks for D. The Council should provide a financial remedy for the distress this caused.
43. Assessment C was also delayed, by over five weeks. However, this delay did not change anything for the family. The only difference following Assessment C was the family would now receive extra short breaks hours over school holidays. If the Council had completed the assessment on time, this would have been complete at the end of the summer holidays, so no provision was missed due to the delay. However, the delay caused distress to Mrs X, for which the Council should apologise.

Complaint handling and the statutory children’s complaints procedure

44. Mrs X complained to the Council in August 2023 about its refusal to provide overnight respite care. The Council responded to the complaint as follows.
• Early-October 2023 – response by a manager from the Children with a Disability Service. The Council says this was the first ‘local resolution’ stage of the statutory complaints procedure.
• Late-October 2023 – further Stage 1 complaint response, to address further comments made by Mrs X.
• April 2024 – after further correspondence with Mrs X, and the second section 17 assessment, the Council issued its final complaint response. This said it would not escalate Mrs X’s complaint to Stage 2 of the statutory procedure, because this would not provide the outcome she was seeking, of overnight respite.
45. Mrs X was eligible to complain under the statutory complaints procedure for children’s social care services. Her complaint was about the Council’s actions carried out under section 17 of the Children Act 1989. Therefore, this fell within the scope of the statutory procedure, as set out in the law and guidance. Where a complaint falls within the scope of the statutory procedure, the Council must use it.
46. As explained at paragraph 29, there are specific circumstances where a council does not need to pursue the complaint through all three stages of the statutory procedure. The Council’s refusal to consider the complaint at Stage 2 was fault because:
• The Council’s assertion that further investigation could not provide the outcome Mrs X was seeking was wrong. If the Council investigated and found fault with how it carried out an assessment, it could decide it should remedy this by providing a new assessment, which could result in a different outcome.
• Even if the Council’s view is an investigation would not change anything, this is not one of the criteria for not investigating set out in the Regulations or guidance. The complainant is still entitled to an independent investigation.
47. Given the time that had passed when I began my investigation, I decided in this case there was no benefit to the Council now carrying out a retrospective investigation via the statutory procedure. I therefore investigated the substantive matters of the complaint. As already explained, I found no fault which brings into question the outcome of the assessments. However, the Council’s failure to complete consideration of Mrs X’s complaint via the statutory procedure prevented her from receiving a prompt response to her concerns. It should remedy the time and trouble caused.

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Action

48. Within one month of our final decision the Council will:
1. apologise to Mrs X for the faults identified and the impact of those faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology;
2. pay Mrs X a total financial remedy of £500, comprising of:
1. £400 to recognise the avoidable distress caused to the family by delays in the assessment process, which resulted in a 14-week delay to short breaks provision; and
2. £100 to recognise the avoidable time and trouble caused to Mrs X in bringing her complaint to the Ombudsman because it did not arrange an independent investigation via the statutory children’s complaints procedure.
49. Within three months of our final decision the Council will:
1. issue a reminder to relevant staff carrying out assessments in its Children with a Disability Service about the timescales for child in need assessments, as set out in statutory guidance and its own policies;
2. issue a reminder to all corporate complaints staff, and staff who respond to complaints in its Children with a Disability Service, about the requirements of the statutory guidance, ‘Getting the Best from Complaints’. It will remind staff where it has accepted a complaint at stage 1 of the statutory complaints procedure for children’s social care services, the complainant is entitled to pursue it through stages 2 and 3 if they remain dissatisfied, except in specific circumstances. It is not a valid reason for refusal to say an investigation could not provide the outcome the complainant is seeking; and
3. review its process for carrying out assessments within its Children with a Disability Service, to decide whether the process should involve a multiagency panel. If it decides a multiagency panel should be part of the process, it will:
1. ensure this process is clearly explained within its published policies and procedures, and in staff training, to ensure it applies it consistently across all assessments; and
2. put procedures in place to ensure it keeps records of panel considerations and discussions.
50. The Council will provide us with evidence it has complied with the above actions.

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Decision

51. I find fault causing injustice. The Council agreed to my recommendations for actions it should take to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman