Summary: Mrs X complained the Council unreasonably declined to carry out an assessment of her child’s needs under section 17 of the Children Act 1989. She says the Council’s actions caused her avoidable distress and have potentially denied her child access to services to which they may be entitled. We found fault by the Council. The Council has agreed to apologise to Mrs X and consider her complaint further via the children’s statutory complaints process.

The complaint

1. Mrs X complained the Council unreasonably declined to carry out an assessment of her child’s needs under section 17 of the Children Act 1989. She says the Council’s actions caused her avoidable distress and have potentially denied her child access to services to which they may be entitled. Mrs X would like the Council to look at her application for a section 17 assessment again, consider the supporting evidence she has provided and carry out a section 17 assessment.

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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 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

4. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
5. Mrs X and the Council had an opportunity to comment on a draft of this decision. I considered any comments before making a final decision.
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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What I found

Children Act 1989

7. 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.
8. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

9. A child can become a ‘child in need’ in different ways, including following a request from a family for an assessment of a child who is experiencing difficulties.
10. If a council receives a referral for an assessment, it should assess the child and family quickly, within one day, and decide if it needs to carry out a full assessment or take urgent action.
11. Councils should have a local protocol explaining its assessment procedures. The whole assessment process should only take 45 working days. Once completed the Council must decide how to meet the assessed needs. 
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.

The statutory children’s complaints procedure

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. 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.
18. 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.
19. The Ombudsman would normally expect a council and complainant to follow the full statutory children’s complaints procedure.

What happened

20. This chronology includes key events in this case and does not cover everything that happened.
21. In January 2025, Mrs X asked the Council to carry out an assessment of their child, Child A, under section 17 of the Child Act 1989. Mrs X said Child A has multiple diagnoses, including autism, ADHD and sensory processing disorder.
22. The Council told Mrs X that Child A did not meet the criteria for an assessment from its Children with Disabilities Team. The Council said it would instead assign Mrs X’s referral to its Targeted Early Help Service.
23. Mrs X complained to the Council on 28 January 2025. Mrs X said she had provided evidence of Child A’s multiple diagnoses but had still been told that Child A did not meet the Council’s criteria. Mrs X said she had asked for a copy of the Council’s assessment criteria, and the contact details of the children’s services manager, but the Council had not provided it. Mrs X said Child A required a section 17 assessment to get support and respite during the school holidays.
24. The Council provided its complaint response on 10 February 2025. The Council said it had discussed Mrs X’s referral and Child A’s diagnoses, and considered Child A did not fall into the criteria for assessment by its Children with Disabilities Team. The Council said its service manager had subsequently reviewed the information provided by Mrs X and found the initial decision that Child A did not meet the assessment criteria was correct. The Council said its Targeted Early Help Service would look to access extra support for Mrs X instead.
25. Mrs X complained to the Council again on 11 February 2025. She said she considered the Council’s decision not to carry out a section 17 assessment was incorrect. Mrs X provided a letter from Child A’s consultant paediatrician and psychiatrist which she said confirmed Child A did meet the relevant criteria for assessment.
26. The Council responded on 21 February 2025. It said its stage one response concluded Mrs X’s complaint was not upheld, and that under its corporate complaints procedure, the Council could consider escalating a complaint to stage two. The Council said it had reviewed Mrs X’s request but found its initial decision remained the same. As a result, the Council told Mrs X it was unable to accept her request for her complaint to be considered at stage two.
27. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us.

Analysis

28. If a family is not happy with the Council’s action under section 17 of the Children Act and they complain to the Council, the Council should reply to that complaint using the Children Act statutory complaints procedure. This is because section 17 is in Part Three of the Children Act 1989; statutory guidance says all functions of the local authority under Part Three of the Act may form the subject of a complaint. The guidance says complaints may arise as a result of many things relating to statutory social services functions, including a disputed decision or the application of eligibility criteria.
29. Mrs X’s complaint falls within the scope of the Children Act statutory complaints procedure.
30. The decision about progressing to stage two lies with the complainant, not the local authority. Neither the regulations nor the guidance allow a council to refuse a stage two complaint because the stage one complaint was upheld, or because the council thinks there is no substance to the complaint.
31. Therefore, the Council’s failure to escalate the complaint is fault. The injustice to Mrs X is that her right to have the complaint considered as part of the statutory children’s complaints procedure has been delayed.
32. 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. This independence is not available to complaints put through the corporate complaints procedure.
33. Because of this, we expect people to complete the complaints procedure before we will consider whether there were any flaws in how the Council investigated their concerns. I have therefore not investigated Mrs X’s concerns about the Council’s decision not to carry out a section 17 assessment because the complaints procedure regarding this matter has not yet been completed.

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Action

34. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mrs X. 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;
2. Consider Mrs X’s complaint at stage two of the statutory children’s complaints procedure, and
3. Remind staff that all functions of the local authority under Part Three of the Children Act 1989 may be considered under the statutory children’s complaints procedure.
35. The Council should provide us with evidence it has complied with the above actions.

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Decision

36. I have found fault causing injustice. The Council has agreed to take the above actions and I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman