Summary: Mrs X complained that the Council failed to deal properly with her complaint about support from children’s social care during the COVID-19 pandemic. We find that the Council did consider alternative means of providing the agreed support but did not fully or clearly explain the question of reimbursement of expenses. The Council has agreed a remedy, including reimbursing reasonable expenses Mrs X incurred in paying for activities that could have been covered by direct payments. Mrs X will need to provide evidence of her spending.

The complaint

1. Mrs X complained that the Council failed to deal properly with her complaint under the three-stage children's social care complaints procedure. She complains that:
1. there was delay in the stage 2 investigation;
2. the Council would not give her time to arrange an advocate to support her at the stage 3 Review Panel hearing; and
3. the Council, the stage 2 investigation and the Review Panel failed to consider the effect of government guidance on the flexible use of direct payments during the COVID-19 pandemic.
2. She says this means the part of her complaint about failure to provide support agreed following a carer's assessment has not been considered properly. As a result she says her family missed out on support it should have received from January to May 2021.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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)

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How I considered this complaint

6. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on social care support for families. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Law and guidance

Children’s social care complaints procedure

8. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The Council appoints an Independent Investigating Officer to investigate and an Independent Person to oversee the investigation at stage 2. If the complainant is not satisfied with the outcome they can ask for a stage 3 review by an independent panel. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
9. Statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail, including timescales at different stages of the process.

Children’s social care support

10. Local authorities have a duty to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child’s needs. A disabled child is a child in need. (Children Act 1989, section 17)
11. If a parent carer of a child in need requests it, the council must assess whether the parent has support needs and, if so, what those needs are. This is known as a parent carer assessment. The local authority may combine the assessment with an assessment of the needs of the disabled child. The assessment must consider:
• whether the parent carer has needs for support in relation to the care which he or she provides or intends to provide;
• whether the disabled child cared for has needs for support;
• whether those needs could be satisfied (wholly or partly) by services which the authority may provide under section 17; and
• whether or not to provide those services.
12. If the Council decides it should offer services to meet needs identified in an assessment, it may offer funding to pay for those services, rather than arranging the service itself. This is known as a direct payment. The direct payment agreement that the parent carer signs includes an agreement to “submit all receipts and bank statements to identify clearly where and how the Direct Payments have been spent”.

Impact of the COVID-19 pandemic

13. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to Covid-19’. This reminds councils that basic record keeping is vital during crisis working, and decision-making should be open and transparent even under emergency conditions. There should always be a clear audit trail of how and why decisions were made.
14. The government issued guidance on the use of direct payments, ‘Guidance for local authorities and clinical commissioning groups in the delivery of direct payments and personal health budgets’. The guidance advised that the government expected councils and other commissioning bodies to be as flexible as possible in using direct payments to manage any issues arising from COVID-19. This includes allowing people to use direct payments to employ family members as personal assistants where necessary. The guidance was updated in November 2020.

What happened

15. The following account is a summary of key events relevant to the investigation. It is not intended to cover everything that happened.
16. Mrs X has Attention Deficit Hyperactivity Disorder (ADHD) and Asperger’s syndrome. She has two teenage children, B and C, both of whom are autistic.
17. In November 2020 the Council completed a parent carers’ assessment of Mr and Mrs X. B and C, who were then aged 17, did not wish to have their own care needs assessed. The recommendation from the assessment was to offer direct payments for five hours a week support for each child. The aim was to help them take part in activities outside the home and increase their independence from their parents. This would provide respite for Mr and Mrs X, giving them time to themselves.
18. The Council agreed to offer the family direct payments of £50 per week in relation to each child. It made a referral to a support agency (‘the Agency’) in late November 2020 to manage the payments. It told Mrs X the Agency would be in touch with her and said the payments were due to start on 18 January 2021.
19. There was then a series of telephone calls and emails between Mrs X and the Council about how it had arrived at the hourly rate and what the payments could be used for. In January 2021 the Council confirmed the payments could be used for driving lessons for B and music lessons for C. However it told Mrs X if she did not use the payments each week she would have to return them.
20. In early January the country went into a national COVID-19 lockdown. On 28 January Mrs X wrote to the Council to say she had not heard from the Agency and did not know how to use the direct payments as nobody had explained how they could be used during the pandemic. She said because of the lockdown no driving lessons were taking place and there was nowhere open for B and C to go. She said:

“nobody has said what help we can receive in this situation with the pandemic, and I understand that I do not have to have a direct payment and ask yourselves to provide this which may be better whilst we are still in lockdown which is going to be at least for another five weeks ……so could you provide a service to meet our needs until lockdown is over please, as there is no point in having a direct payment each week when we cannot spend it and it gets lost as it has to be used in that week.”

21. Mrs X discussed the situation with the Team Manager in a telephone call later that day. Mrs X said she could not have a Personal Assistant (PA) coming into the home at the moment and there was nowhere for her children to go out because of the pandemic. The Council’s record of the call says:

“We discussed how if a PA is not accepted then it’s direct payments, but if that’s not accepted then we would normally close. Mrs [X] raised that this is an unmet need and it’s because of covid otherwise they would use it as identified. We identified a possible work around and I agreed to explore this but that it’s unclear if it’s allowed.”

22. The Council has explained that the possible ‘work around’ referred to was that the Team Manager would ask the Assistant Director (AD) if the Council could make a one-off payment covering the total amount of the direct payments up to May 2021 when B and C turned 18. The payment would be used to meet the needs identified in the assessment, and Children’s Social Care would then close the case.
23. Over the following four months there was a great deal of correspondence and telephone contact between Mrs X and the Council. Sometimes Mrs X contacted the Council several times a day and at times became frustrated and angry. She referred to lack of social care and special educational needs support from the Council. The Council decided to restrict communications and made an arrangement for the Team Manager to provide regular written updates to Mrs X.
24. During the course of these exchanges, the following issues were raised:
• The Council said the Agency did not allocate a worker to the family and asked the Council to set up and manage the direct payments instead. It said this was because of the Agency’s “past experience” with the family. Mrs X later spoke to a worker at the Agency and told the Council she was told this was not the reason for the Agency referring the case back to the Council.
• The Council said before it could set up the direct payments Mrs X had said she did not want them and preferred the Council to arrange a PA itself. It had made enquiries with several agencies but had been unable to identify any who could work with the family. It would continue to try and find one. It said at any time Mrs X could ask for the direct payments again but she had to confirm it in writing.
• Mrs X said she had not refused to have direct payments. She said she had just advised that she did not know how she could use them during the pandemic and thought a better alternative interim arrangement would be for the Council to arrange a PA.
• Mrs X said she had not heard back from the Council about possible alternative arrangements as discussed in January. In March the Council explained the AD was considering the request for a one-off payment. In April it told her the AD had refused it as it was not in line with Council policies. It said the offer of direct payments remained.
• In late March the Council confirmed Mrs X could employ her sister as a PA. Mrs X said she had asked the Council in January if she could do this but it had refused. The Council denied it had refused and repeated that she could employ her sister.
• There was a discussion about the cost of music lessons. The Council told Mrs X she should look into the costs and come back to the Council if she felt the hourly rate it had offered was insufficient.
• Mrs X had been in touch with the Adult Autism Team about B and C’s transition to adult services. She said the Team had lists of PA providers and she wondered why the Council had not contacted them.
25. In mid-April, once COVID-19 related restrictions had been lifted and Mrs X felt it was safe to do so, she arranged music and driving lessons for her children. Mrs X paid for these herself. She says she submitted receipts to the Council and asked it to reimburse her but it refused. The Council and Mrs X have provided copies of the evidence Mrs X sent in when asking for reimbursement. Some of these documents are copies of emails relating to direct payments several years previously, and one is evidence of a payment but with no explanation of what it was for. There were also copies of screenshots of bank transfers but with no corresponding receipt from the person who received the payment.
26. B and C turned 18 in May. Responsibility for any social care support transferred to the Adult Autism Team. I understand that the Team updated the carer’s assessment and has provided support through direct payments and PA’s.
27. The Council closed the children’s social care case. The case closure note says once Mrs X asked the Council to provide a PA service instead of direct payments it had been unable to source one. This was because of the national pandemic and providers not being able to identify suitable provision. It said the family did not agree for the Council to end this search and resume direct payments. So “support between 18.01.21 and 27.05.21 has not been possible.”

Complaint

28. Mrs X made a formal complaint to the Council in late April 2021. She was not happy with the response at stage 1 and asked to go to stage 2 of the statutory children’s social care complaints procedure. The Council appointed an independent Investigating Officer (IO) and Independent Person (IP).
29. The Council says there was some delay in finding an IO because of absences related to COVID-19. Also it was looking to appoint an IO who had experience of working with people with ADHD/Asperger’s syndrome or who were familiar with these issues. There were also discussions between Mrs X, the Council and the Ombudsman about whether Mrs X could complain direct to the Ombudsman rather than going through the stage 2 investigation. The Council agreed a statement of complaint with Mrs X in early August. The IO and IP issued their reports on the investigation in early November. The Council sent its stage 2 response to Mrs X in mid-November. It apologised for the delay and offered Mrs X £100 to recognise her time and trouble in pursuing the complaint.
30. Mrs X asked to take the complaint to a stage 3 Review Panel and asked for an advocate to help her. The Council responded the following day with a date for the Review Panel in early January 2022. It explained that as a parent she did not have a right to an independent advocate under the children’s social care complaints procedure, as children did. But it confirmed it had already agreed her social worker from the Adult Autism Team could support her at the Panel hearing. It also advised her of advocacy organisations she could contact.
31. In early December Mrs X told the Council the family was going on holiday. She did not want the Council to contact her until they returned just before Christmas. She provided copies of further information she wanted the Panel to consider.
32. In mid-December the Council decided it would have to hold the Review Panel virtually rather than in person as originally planned because of COVID-19 restrictions. When she returned from her holiday Mrs X contacted the Council with concerns about this arrangement and asked the Council to postpone the hearing to a later date. She said she had not had enough time to prepare and wanted to seek further advice. She also said her social worker was refusing to support her. The social worker clarified that she would not act as a witness for Mrs X. The Council explained that would not be the social worker’s role. Rather the social worker would attend the meeting to support Mrs X with communication.
33. The Council also gave its reasons for going ahead with the Panel on the original date rather than re-arranging it. It said:
• It had gone to a lot of effort to arrange the Panel, making sure individuals were available to attend. It would not be reasonable to cancel it at such a late stage.
• It had to hold the Panel meeting within the required time limit of 30 working days. It had told her the date in late November 2021, the day after she made her request.
• It was satisfied it had given Mrs X an opportunity to make representations in person and in writing.
• It had arranged for her to attend virtually from a Council office at her request, with the support from her social worker.
• She had a right to ask the Ombudsman to consider her complaint, but the Ombudsman would expect the Council to go through all three stages of the complaints process first.
34. The Review Panel meeting took place virtually in early January 2022, as scheduled. Mrs X attended with her social worker. The Council sent her its response to the Panel’s findings in late January.
35. Mrs X’s complaint was about the involvement of children’s social care with her family since February 2020. The parts of the complaint relevant to her complaint to the Ombudsman were:
• Difficulties in setting up and planning for the use of direct payments.
• Failure to provide services/direct payments agreed to help B and C become independent, including refusal to employ Mrs X’s sister and refusal to have a support worker using direct payments.
36. The IO’s findings at stage 2 on these matters and the Council’s response to the findings were as follows.
• There was some delay in setting up the direct payments with the Agency. But the Council had made a back-payment from September 2020, when the Council first received the referral for the carer’s assessment until 18 January 2021.
• The Council accepted there had been some delays and apologised for this. It partially upheld the complaint saying it had already provided a remedy by backdating the payment to the date of the original referral rather than the date of the assessment.
• The complaint about failure to provide services was not upheld. The IO said there was evidence that the Council made every effort to provide services. It had originally arranged to set up direct payments but Mrs X had difficulty using them because of the pandemic restrictions and so had asked the Council to find a PA instead. The Council tried unsuccessfully to identify a PA and Mrs X changed her mind about whether she wanted a PA or direct payments.
• There was no evidence that the Team Manager refused to allow Mrs X to employ her sister. There was evidence of him reassuring her that this would be an appropriate use of direct payments.
• The Council said there was clear evidence that the social work team worked with Mrs X to try and resolve matters and ensure support was put in place through attempts to find a PA for B and C. Unfortunately these efforts were unsuccessful because of the challenges of COVID-19.
37. The IO’s view was that stress caused by COVID-19 made it difficult to access services and “the very clear difficulties in communication between [Mrs X] and the local authority led to services not being available to [Mrs X] and her family.”
38. The Stage 3 Review Panel found the stage 2 investigation had been conducted thoroughly and professionally. The Panel said it had not received any new evidence to lead it to disagree with the stage 2 findings. It had no recommendations to make.
39. The Council agreed with the Panel’s conclusions. It apologised for the faults already found and was satisfied it had offered a suitable remedy. It said it would review the process of transition from children’s to adult services.
40. In complaining to the Ombudsman, the main issue Mrs X wanted to focus on was the complaint about lack of support from January to May 2021. She wanted the Council to reimburse the costs of arranging the activities herself.

Analysis – was there fault causing injustice?

Complaint a) – delay in stage 2 of the complaint

41. The Council has accepted there were delays at stage 2. It has explained the reasons for the delay in starting the investigation, as set out in paragraph 29 above. It also says it took longer than usual to complete the investigation because of staffing issues and the volume of work in the Children’s Complaints Team with the impact of COVID-19.
42. The delay was fault but I consider the Council has explained the reasons and provided a suitable remedy for Mrs X.

Complaint b) – arrangements for the stage 3 Review Panel hearing and consideration of the complaint about social care support during the pandemic

43. Mrs X complains that the Council did not give her time to find an advocate to support her at the Panel meeting. The Council has explained what it did to offer support at the hearing and that the social worker could not act as a witness. It also provided an explanation as to why it decided to go ahead on the date originally planned. I see no fault in how the Council arrived at these decisions.
44. The transcript of the Panel hearing shows Mrs X had a proper opportunity to speak and explain her concerns.
45. However, based on the evidence I have seen my view is that the Council has not considered the part of the complaint about lack of support from January to May 2021 properly through the complaints process.
46. The Council agreed as a result of the parent carer’s assessment that Mr and Mrs X had a need for respite from their caring responsibilities. This would be provided through five hours a week support for each child. The Council’s position is that before it could arrange the direct payments Mrs X said she no longer wished to receive support this way and wanted the Council to find a PA instead. It says despite all its efforts it was unable to do so. Then, because Mrs X did not ever say clearly in writing that she wanted to resume the direct payments, it was not possible to offer the family any support.
47. In my view this reasoning is flawed because it does not take sufficient account of the impact of the COVID-19 pandemic on the difficulties of arranging support and the need for flexibility. The records show Mrs X made it clear when she contacted the Council in late January 2021 that she did not know how she could use direct payments or a PA in lockdown conditions. She was concerned that if no solution could be found she would lose the payments. The Council told her that normally if someone did not want either direct payments or for the Council to arrange a PA it would close the case. But these were not normal circumstances and they required flexibility on the part of the Council.
48. The Council considered an alternative arrangement which was to pay a lump sum advance payment equivalent to the cost of the direct payments up to the children’s 18th birthday. It says it refused this because it would not be in line with its “fiscal duties around the spending of public money”. In other words its duty to spend public money responsibly, and account for its expenditure. As the Council considered Mrs X’s request properly and has explained the reasons for its decision I have no power to question the decision it reached. I could not criticise the Council for considering its financial responsibilities.
49. Mrs X says she asked the Council if she could use direct payments to employ her sister but initially it refused. There is clear evidence that in late March 2021 the Council confirmed she could employ her sister. Like the IO and the stage 3 Review Panel I have seen nothing in the Council’s records to support Mrs X’s allegation that it told her she could not use direct payments to employ her sister. Mrs X maintains it did tell her this. The Council officer denies it. I cannot resolve this conflict of evidence.
50. Nevertheless if the Council did not receive confirmation from Mrs X that she wanted to receive the support by way of direct payments and it had tried unsuccessfully to identify a suitable PA itself, it should have been open to offering other solutions. This would have been in the spirit of the government guidance on flexibility in the use of direct payments during the pandemic. In this case, once she was able to, Mrs X paid for lessons for her children. The Council had confirmed at the outset that this was an acceptable use for the direct payments. The Council says it was willing all along to reimburse costs of lessons if Mrs X provided the necessary evidence. It says it did not receive satisfactory evidence from her.
51. I have not seen evidence in the records that the Council stated explicitly to Mrs X that it would cover the costs of the lessons or other activities if she provided evidence of her spending. Mrs X would have been aware from the agreement she signed of the requirement to provide receipts to support direct payments. But the direct payment arrangement had not been set up. So in my view if the Council was going to adopt a flexible approach and cover the costs of the activities, it should have said so explicitly. However, having considered the evidence of payments Mrs X provided in detail I do not find fault with the Council’s view that she did not provide sufficient supporting evidence to enable it to reimburse her.
52. I recognise that there were difficulties in communications between Mrs X and the Council, and that she did not clearly state she wanted the direct payment arrangement to resume. But this does not detract from the fact that the Council:
• decided the family was eligible for support,
• could not arrange the PA support itself, and
• has not demonstrated that it explicitly told Mrs X it would reimburse expenses she incurred on items the Council agreed could be covered by direct payments.
53. Neither the stage 2 investigation nor the stage 3 review appear to have considered whether reimbursing the costs of the activities Mrs X arranged would be a suitable way of making up for lack of direct payments or PA support which could not be used between January and May 2021. I consider this is a flaw in the investigation so far.
54. I find that the Council did show flexibility in its approach to providing support by considering the one-off payment and looking for a PA. But it did not explain clearly enough to Mrs X that it would agree to reimburse expenses incurred in paying for support that would otherwise have been provided through the direct payments. As a result the family may have missed out on potential support and Mrs X has incurred unnecessary expenses.

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Agreed action

55. The Council has agreed that within one month of the final decision on this complaint it will take the following action:
• Apologise to Mrs X for the fault I have identified.
• Reimburse the reasonable costs of activities she paid for between January and May 2021 which supported the aims and purpose of the support package agreed as a result of the parent carers’ assessment. This will be dependent on Mrs X providing suitable evidence of her expenses. The payment should not exceed the overall amount of the direct payments agreed.
• Pay Mrs X £100 to recognise the time and trouble involved in bringing her complaint to the Ombudsman.
56. The Council will also repeat the offer to Mrs X of the £100 agreed in relation to the previous complaint as she has not yet taken it up.

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Final decision

57. I find that while the Council did try and work with Mrs X to enable her to use agreed direct payments during the COVID-19 pandemic, it did not state clearly enough that it would reimburse expenses she incurred on paying for activities for her children. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman