Summary: Mrs X complained the Council failed to properly assess her child for disabled children’s services, and did not properly investigate her complaint about this under the statutory complaints procedure for children’s social care services. The Council properly considered Mrs X’s complaint via the statutory procedure. However, it failed to properly follow up on one of the actions it agreed, to repay Mrs X for direct payments missed due to delays. This caused Mrs X financial loss, and avoidable time and trouble in pursuing her complaint further. The Council agreed to apologise and pay Mrs X the remaining money she is due.

The complaint

1. Mrs X complains the Council failed to properly assess her child for disabled children’s services. She also complains about how the Council investigated her complaint about this under the statutory complaints procedure for children’s social care services.
2. Mrs X says because of the Council’s failings:
• there were delays in her child’s social care support starting so they missed support, and their Education, Health, and Care Plan did not accurately reflect their social care needs and provision;
• Mrs X experienced distress and frustration because of delays and faults in complaint handling; and
• faults identified in the Council’s statutory complaint investigation showed it did not complete agreed Ombudsman recommendations in recent cases from other complainants, where we found fault with its direct payments policy for disabled children.
3. Mrs X wants the Council to:
• provide an increased financial remedy for distress and delays, added to the payments it already made;
• make systemic changes to its services, processes, and staff training, to address both the faults in how it handled the disabled children’s service assessment, and how it investigated the complaint; and
• make systemic changes to address its failure to complete previous Ombudsman recommendations in recent cases from other complainants.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

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

Children in need and section 17 assessments

10. 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.
11. Statutory guidance ‘Working Together to Safeguard Children’ sets out how councils should carry out section 17 assessments.
12. 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.
13. Where a council has assessed a disabled child as having needs which are eligible for support, they are entitled to a service that is sufficient to meet their needs. Alternatively, parents/carers of disabled children can ask for a direct payment to meet the needs of the child, so they can arrange and pay for support themselves.

The statutory complaints procedure for children’s social care services

14. 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.
15. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
16. 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.
17. 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.
18. 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.
19. 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.

Education, Health, and Care (EHC) Plans

20. 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.
21. Where the council decides it is necessary for support to be provided under section 2 of the Chronically Sick and Disabled Persons Act 1970 it must include this in Section H1 of the EHC Plan. Support provided by Early Help or under section 17 of the Children Act 1989 (child in need) should be included in Section H2 of the EHC Plan. 

What happened

22. Mrs X’s child, D, is disabled and has an EHC Plan. In 2023, Mrs X contacted the Council’s disabled children’s service for support. The Council carried out a section 17 assessment and in August 2023 decided it would provide direct payments so Mrs X could arrange short breaks provision.
23. In October 2023, Mrs X complained to the Council about how it carried out is section 17 assessment. She said:
• the Council gave her wrong information about the assessment process when she first asked for support;
• the assessment was delayed and she repeatedly had to chase the Council. The family were assessed by three separate social workers unnecessarily, causing avoidable distress and delays;
• how the Council carried out the assessment, and presented its report about it, was upsetting because it felt like an assessment about safeguarding concerns rather than for support services;
• at the time of this October 2023 complaint, the direct payments were still not in place, so she could not arrange support; and
• the Council had issued a new EHC Plan for D while the section 17 assessment was ongoing, which wrongly said they had no social care needs. She said the EHC Plan should have properly reflected there was an assessment ongoing for disabled children’s services.
24. The Council responded at stage one in December 2023. It said it would not uphold the complaint and considered there was no fault in its actions. Mrs X escalated her complaint to stage two.
25. The Council appointed an investigating officer and independent person to investigate at stage two. They produced their reports in late-March 2024. The Council’s adjudicating officer then considered these reports and wrote to Mrs X in May 2024 with the Council’s response. This said:
• the Council accepted in full the findings of fault and recommendations from the independent investigation;
• the Council would create an action plan with various actions to improve its services;
• there had been delays in the section 17 assessment so the family would receive extra short breaks hours to make up for those missed during the delay;
• it would consider changes to its section 17 assessment template to address Mrs X’s comments about the upsetting use of safeguarding focused language. However, part of Mrs X’s complaint had been questioning the purpose of the Council carrying out a section 17 assessment altogether when there were no safeguarding concerns. The independent investigation had not upheld this one part of the complaint, and the Council agreed with this position. It said section 17 was the correct process to follow, but it should have been clearer that needs unrelated to safeguarding are also covered by section 17;
• D now had an amended EHC Plan which fully reflected their assessed social care needs. It had issued this in September 2023 once the section 17 assessment was complete. However, it accepted fault in how it had originally considered the social care needs as part of the EHC Plan process and would address this with its special educational needs service; and
• there had been delays in the statutory complaints procedure. The Council offered Mrs X £500 in recognition of the time and trouble caused by these delays in complaint handling.
26. Three weeks later Mrs X escalated her complaint to stage three. She accepted the £500 payment for complaint handling delays but said she would now not be able to use the proposed extra short break hours so asked for a further financial payment instead. She also said she wanted the stage three review panel to look at all parts of her complaint again, including those the Council had upheld. She said she had no confidence the Council would complete the promised actions to improve its services.
27. An independent stage three panel considered the complaint in July 2024. The Council considered the panel’s report and issued its final response to the complaint in early-August. In its final response, the Council said:
• it accepted all the panel’s findings, and accepted Mrs X had received a poor service, and apologised for this;
• it would continue to monitor its action plan to complete the actions from the independent investigation;
• it agreed to Mrs X’s request for a financial payment instead of extra short breaks hours, which it had calculated as £542.25; and
• Mrs X’s complaint questioning the purpose of carrying out a section 17 assessment altogether was still not upheld, and the stage 3 panel had agreed this should not be upheld.
28. Mrs X was unhappy with the Council’s final response so came to the Ombudsman in September 2024. She told us the Council had paid her:
• £500 for time and trouble caused by complaint handling delays; and
• £542.25 for the direct payments missed due to delays in the section 17 assessment, which she said did not cover the full period missed.

My findings

29. 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 this procedure, the Ombudsman would not normally reinvestigate it. However, we may look at whether the Council:
• correctly followed the procedure, within the correct timescales, and whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question;
• properly considered the findings and recommendations of the independent investigation and review panel; and
• completed any recommendations without delay.
30. I considered the Council’s records of its statutory investigation, and its communications with Mrs X. I found no flaws in the stage two investigation or stage three review panel that could call into question the findings of the process.
31. The Council fully considered and accepted all findings and recommendations from the independent investigation and review panel. This included an acceptance that it had not met statutory complaint handling timescales, for which it offered an apology and financial remedy. I consider this remedy, and the other remedies offered, to be appropriate and in line with what the Ombudsman would recommend, according to our Guidance on Remedies.
32. In response to our enquiries, the Council provided sufficient evidence it had followed up on all actions it agreed as an outcome of the investigation. This included apologies and financial payments to Mrs X, and actions to address the faults identified and improve its services for the future.
33. However, I found the Council did not calculate the £542.25 payment for missed direct payments correctly, as this did not cover the whole period of missed payments. This was fault. In response to our enquiries, the Council looked at this again and accepted it had not paid Mrs X the full amount she is due. The Council should apologise and pay the remaining money that is due to Mrs X.
34. If the Council had completed its section 17 assessment on time, Mrs X would have received payments from the start of July 2023. Mrs X received the first payment in late-December 2023, and the Council evidenced this was backdated to start from 27 November 2023. Therefore, I calculated the Council still owes Mrs X £1,102.58 to cover payments missed from 3 July to 26 November 2023.

Previous Ombudsman investigations

35. The Ombudsman previously found fault with the Council in four other investigations from 2021 to 2023, about its policy for direct payments for disabled children. As a result, the Council agreed to review its policy.
36. Mrs X’s view is faults the Council identified in its statutory complaint investigation of her case show it has not completed the actions it agreed to in our previous investigations.
37. I considered this and decided the faults in Mrs X’s case were not the same as the faults we identified in those previous investigations. We previously found fault with the Council for refusing requests for direct payments which it had not properly considered, because its policy about this was wrong. In Mrs X’s case, the Council considered her request and agreed to the direct payments, it just took too long to do so.

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Action

38. Within one month of our final decision the Council will:
1. apologise to Mrs X for the further distress, time, and trouble caused because it did not properly calculate the financial payment for missed direct payments, meaning she had to pursue this further. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology; and
2. pay Mrs X the remaining £1,102.58 she is due for missed direct payments from 3 July to 26 November 2023.
39. The Council will provide us with evidence it has complied with the above actions.

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Decision

40. I find fault causing injustice. The Council agreed to my recommendations of 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