The Investigation

The complaint

1. Ms X complained the Council offered an insufficient remedy and failed to complete the recommendations made after it considered a complaint she made through the children’s statutory complaints procedure. These matters included adaptations to her home and a child and family assessment. Ms X said this caused her frustration and distress and her son to be at risk in his own home. Ms X wanted the Council to improve how it completed children and family assessments, to complete the adaptations to her property and provide appropriate financial recompense for the upheld complaints.

Legal and administrative background

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)

4. Under our information sharing agreement, we will share this report with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Relevant law and guidance

Children’s statutory complaints procedures - the three-stage procedure

5. 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.

6. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.

7. 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.

8. 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 IO report, any report from the IP and the adjudication response.

9. 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.

10. 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.

11. The children’s statutory 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 children’s statutory complaints procedure, we would not normally re-investigate it.

12. We 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 us without completing all three stages. This is called an early referral. 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.

Child in need

13. 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.

14. 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.

15. 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.

Education, Health and Care Plans

16. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Special Educational Needs and Disability (SEND) Tribunal or the council can do this.

17. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent a notice providing details of the proposed amendments within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

How we considered this complaint

18. We have produced this report following the examination of relevant files and documents and interview with the complainant.

19. We gave Ms X and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

20. This section sets out the key events in this case and is not intended to be a detailed chronology of everything that happened.

Background

21. Ms X’s son, Y, has disabilities and additional needs. Y has reduced safety awareness and always requires close supervision. Y attends a specialist school where he receives one-to-one support. Ms X looks after Y on her own.

22. At the end of July 2023, Ms X and Y moved into a new property after the Council decided a previous property was not suitable for Y’s needs. The Council conducted a child and family assessment to identify Y’s needs afresh. As part of the assessment an occupational therapist (OT) assessed the new property and Y’s needs. In September 2023 the OT provided their report to the Council. It set out that major adaptations were needed to the property to meet Y’s safety and supervision needs. The Council accepted the OT’s recommendations in September. It completed the child and family assessment in October and provided Ms X with a copy at the end of that month.

23. Ms X contacted the Council in November about the accuracy of the assessment and errors she identified in it. She said it had not properly identified Y’s needs. The Council made some amendments to the assessment in response.

Complaint to the Council

24. Ms X complained to the Council in January 2024 about how it had completed and communicated the outcome of the child and family assessment to her. She also complained about how it had not met Y’s social care needs and that it delayed reviewing his Education, Health and Care (EHC) Plan. The Council responded to Ms X’s complaint at stage one of the children’s statutory complaints procedure. Ms X was dissatisfied with the Council’s response and asked it to consider her complaint at stage two of the complaints procedure.

25. The Council appointed an Investigating Officer (IO) and Independent Person (IP) to investigate Ms X’s complaint. They met with Ms X in March 2024 and agreed a statement of complaint. Ms X raised 13 points of complaint.

26. Ms X’s desired outcomes were to receive a full apology for the Council’s faults, for the costs of holiday activities she had arranged for Y to be paid, for the outstanding tasks to be completed without delay, which included the adaptations to her home, and for an independent review of the Council’s system of support for children with disabilities.

27. The IO considered the available documentary evidence, interviewed key Council staff members, and Ms X. They completed the investigation in August 2024. The investigation upheld nine elements of complaint. It did not make a finding on four points as they had been previously considered by us and/or the SEND Tribunal.

28. In summary the IO upheld the following findings.

• The Council delayed completing a child and family assessment for approximately one month, delayed providing a copy of it to Ms X and did not communicate the delays to her.

• The assessment did not fully identify Y’s needs within the home and community.

• The Council had failed to address Y’s identified needs. In making this finding the IO referred to other complaints Ms X had made to the Council and then to us.

• The Council failed to complete the identified adaptations to Ms X’s property in a timely manner following the OT assessment in August 2023, due to the process or system of agreeing and commissioning work being fragmented and unresponsive to people’s immediate needs.

• The Council delayed completing an annual review of Y’s EHC Plan between May 2023 and January 2024.

• Because the Council had closed Y’s case without meeting his needs, Ms X had to pay for holiday activities for him and there was an outstanding bill to be paid.

29. The IO agreed with Ms X’s desired outcomes and did not make any further recommendations. The IP agreed with the IO’s conclusions and the outcomes.

30. The Council wrote an adjudication letter to Ms X and agreed with the IO’s findings. It said:

• its assessment of Y’s needs was delayed due to it receiving the detailed OT assessment of the property, which it needed to consider;

• the current 12-month delay in it completing the necessary adaptations to

  Ms X’s house was due to “a fragmented and unresponsive system for agreeing and commissioning work”; and

• there were a number of areas of potential learning as a result of Ms X’s complaint which required reviewing. The Council told Ms X “all of the points made by the Investigating Officer in [their] report will be reviewed and any learning points from this will be implemented across the team”.

31. The Council apologised for the impact of the upheld complaints on Ms X. It confirmed it had paid the outstanding bill for the holiday activities. It offered to complete a further assessment of Y’s needs. It offered Ms X £400 to recognise the injustice caused by the delay in the EHC Plan review process. It did not make any comment on the outstanding major adaptations to Ms X’s house.

32. In September 2024 Ms X made an early referral of her complaint to us as set out in paragraph 1.

Other relevant events

33. The Council appointed a contractor to complete the adaptations to Ms X’s house in May 2024. In October 2024 the contractor told the Council they were withdrawing. They said this was due to Ms X repeatedly changing her mind about the materials she wanted and being unhappy with the work they had started.

34. The Council informed Ms X of the contractor’s decision and reason in November. It told Ms X it would discuss the matter with her landlord and would update her.

35. Ms X complained to the Council in December 2024 about the delays in the adaptations and the Council’s explanation.

36. In a previous investigation we found fault in the Council failing to provide an interim package of support for Ms X in caring for Y while the adaptations to her property were completed. This put Y at risk of harm and caused Ms X distress. As a result of that investigation, we recommended the Council provided a symbolic financial payment to Ms X and interim support while the adaptations were completed. The Council confirmed in November 2024 that the interim package of support was in place.

37. Both the Council and Ms X informed us that Ms X had declined a further assessment of Y’s needs by the Council. The Council also provided evidence that the SEND Tribunal had considered the assessment of Y’s social care needs.

38. In response to our enquiries the Council:

• said it had not undertaken any work to improve its commissioning system for adaptations, as the current system worked well. It said the delays in this case were nothing to do with the system in place; and

• could not provide evidence of it identifying and implementing any learning points from the stage two investigation of Ms X’s complaint.

39. We provided the Council with a draft decision that set out our findings and recommendations as set out below. Ms X informed us a month later the Council had issued an apology and paid her £500 in relation to this complaint. At that stage our recommendations were subject to change and were not finalised. The Council has since agreed to the recommendations we made.

Conclusions

40. We investigated events up until October 2024. At that time the contractor withdrew their services which was a new event. Ms X has since raised a new complaint about that matter with the Council and so we have not investigated it further in this case.

The stage two investigation

41. Ms X’s complaint to us met the requirements for an early referral. This means we did not ask the Council to carry out a stage three panel before we would consider Ms X’s complaint. We have therefore focused our investigation on how the Council carried out its stage two investigation.

42. 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). The Council's stage two investigation was thorough, robust and

well-evidenced. The IP, as part of their role, ensured the integrity of the stage two investigation. The stage two investigation found the Council at fault in how it managed some of Ms X’s case. As there was no fault in how the Council carried out the complaint investigation, we have no reason to question its findings.

43. The IO considered Ms X’s desired outcomes and decided they were appropriate to the injustice identified as a result of the Council’s fault. These were for the Council to:

• apologise;

• pay the cost of Y’s holiday activities;

• complete ‘outstanding tasks’ without delay; and

• carry out an independent review of the Council’s support system for children with disabilities.

44. The IO could have made different or additional recommendations if they believed it was appropriate. The IO did not make any further recommendations and neither did the IP, who had been involved in every step of the stage two investigation. There is no fault in how they came to that decision and so we cannot question the outcome.

Apology, EHC Plan delay and holiday activities

45. The Adjudicating Officer in the Council’s stage two response apologised for the injustice Ms X experienced because of the failings identified in the stage two investigation. It suggested a payment of £400 to remedy the injustice she was caused by the five-month delay in it completing the annual review of Y’s EHC Plan. That is in line with our guidance on remedies and is an appropriate symbolic payment.

46. The Council and Ms X confirmed the Council paid the outstanding amount for the holiday activities. There was no fault in the Council’s actions in relation to these outcomes.

Major adaptations

47. The Adjudicating Officer commented on the delays in completing the adaptations but did not make any reference to the action the Council would take to complete the work, even though this was one of the ‘outstanding tasks’ from the IO’s recommendations. The Adjudicating Officer told Ms X the delay was due to the systems used to commission work; however, the Council told us this was not the case. The Adjudicating Officer’s response must be on behalf of the Council as a whole. ‘Getting the Best from Complaints’ explains the purpose of adjudication is for a council to consider the investigation reports and identify its response, decision and any action to be taken. The Council’s apparent change of mind, following issuing the adjudication letter, without adequate explanation is therefore not in accordance with expectations for the independent process. The Council’s failure to provide an action plan for the outstanding adaptations, and for its inaccurate explanation to Ms X, was fault. It caused Ms X frustration and eroded her trust in the Council.

48. In a previous investigation, we remedied injustice caused to Y by the Council’s failure to provide an interim support package while the major adaptations were completed. We found this fault caused Ms X frustration and put Y at risk of harm. Whilst the delay in providing the adaptations to the property is fault, the subsequent injustice of frustration for Ms X and risk of harm for Y has already been remedied in our previous investigation.

Assessment of need

49. The IO found the Council had not properly identified Y’s needs, as a disabled child, through its assessment process. The Council subsequently offered Ms X a further assessment of Y’s needs which is an appropriate remedy. Ms X has declined this, which is her decision to make. The SEND Tribunal has considered the matter of a social care assessment of Y’s needs and so we cannot investigate that point further for the reasons set out in paragraph 3.

50. The IO found the Council had not met Y’s needs over a period of time. In making this finding the IO relied on evidence from our previous investigations and the Council’s consideration of complaints made by Ms X. Therefore, any fault causing injustice has already been identified, and where appropriate, remedied by the Council following the conclusion of our investigation.

Learning from complaints

51. Ms X specified one of her desired outcomes was for an independent review of the Council’s system of support for children with disabilities. The IO at stage two agreed Ms X’s desired outcomes were appropriate, including the independent review. The Council’s Adjudicating Officer did not directly respond to the outcome, either to agree or provide a reason why it disagreed, which was fault. It caused Ms X uncertainty about whether the Council properly considered the matter.

52. The Adjudicating Officer told Ms X the Council would review all the points made by the IO and would implement any learning points. The Council has not provided any evidence it reviewed, identified and implemented any learning points or improvements. That was fault and caused Ms X frustration.

53. We have previously investigated other complaints Ms X has brought to us following the children’s statutory complaints procedure. In those cases, we also found the Council had either failed to respond to the recommendations, or failed or delayed completing the recommendations made during the statutory complaints procedure.

54. The findings from this investigation, coupled with our earlier findings relating to Ms X’s cases, cause us concern about the Council’s governance arrangements to administer the children’s statutory complaints procedure. They indicate the Council is failing to consistently and effectively provide appropriate redress or improve practice to prevent future injustice. We have therefore made appropriate service improvement recommendations.

Recommendations

55. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

56. In addition to the requirements set out above the Council has agreed to take the following action to remedy the injustice identified in this report.

57. Within one month of the date of this report the Council should:

• write to Ms X and apologise for the avoidable frustration, uncertainty and erosion of trust in the Council caused by the Council’s faults, and pay her a symbolic amount of £500 to recognise the same; and

• write to Ms X and tell her if it will complete an independent review of the Council’s system of support for children with disabilities. If the Council decides not to complete an independent review, it should provide a brief explanation of its rationale.

58. It has already completed the first recommendation to apologise to Ms X in writing and pay her a symbolic amount of £500.

59. Within three months of the date of this report the Council should provide training to all Council officers who respond as adjudicating officers in the children’s statutory complaints procedure in line with the statutory guidance. The training should include the importance of:

• responding to a complainant’s desired outcomes;

• responding to all recommendations made through the statutory complaints procedure, including where the Council does not agree to recommendations; and

• identifying SMART (specific, measurable, achievable, realistic and timebound) outcomes following an upheld complaint.

60. Within three months of the date of this report the Council should review how it identifies, records, implements, monitors and reviews recommendations made through the children’s statutory complaints procedure. The Council should ensure it has a robust mechanism in place, with management oversight, to ensure that recommendations are completed, and evidence is recorded within timescales set by the adjudicating officer. The Council should ensure it is able to provide documentary evidence of it completing recommendations made through the children’s statutory complaints procedure.

61. The Council has accepted our recommendations.

Decision

62. We have completed our investigation into this complaint. There was fault by the Council causing injustice to Ms X. The Council should take the action identified above to remedy that injustice and avoid the same fault occurring in the future.

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