Summary: Mrs X complains the Council failed to provide Child Y with the agreed short breaks package, causing distress and upset to Mrs X, Child Y and the rest of the family. The Ombudsman finds fault with the Council for failing to provide the agreed support package. The Council has agreed to a payment in recognition of the distress caused.

The complaint

1. Ms X complains the Council has:
1. Failed to provide the overnight short breaks service it agreed to provide under her disabled son's Child in Need Plan and Education, Health and Care Plan, with last-minute cancellations and closure of the short breaks centre;
2. failed to offer a suitable alternative service;
3. taken no action to offer her the required care despite an independent complaint investigation upholding her complaint; and
4. failed to communicate with her properly.
2. She says this has caused distress to her whole family. For around two years her son has missed opportunities to socialise and develop relationships, she has had almost no break from caring, and she and her husband have had less time to spend with their other child.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), 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)

Back to top

How I considered this complaint

6. A colleague spoke to Mrs X about her complaint. I have considered information from Mrs X and information provided by the Council.
7. I considered comments from Mrs X and the Council on a draft of my decision.
8. 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.

Back to top

What I found

Guidance and legislation

9. 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)
10. 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.

11. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section H2 sets out any social care provision needed as a result of the child’s special educational needs and disabilities.

Statutory complaints procedures

12. 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.
13. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
14. 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 investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
15. 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 days of the date of request, and then issue a final response within 20 days of the panel hearing.
16. 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.
17. The Ombudsman 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 the Ombudsman without completing all three stages. This can only happen when the stage two investigation is robust with all complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.

What happened

18. Mrs X has a child with disabilities, whom I shall refer to as Child Y. Child Y has an EHCP and is also on a Child in Need (CIN) plan for their additional health needs.
19. Child Y’s EHCP and their CIN support plan set out that Child Y should access overnight short breaks support. Previously, Child Y accessed this at a short breaks centre, which I shall refer to as Centre 1.
20. At the start of COVID19, the Council wrote to all parents and guardians of children eligible for short breaks. It told them due to COVID-19, it had to close the centres and the majority of short breaks would not take place. It said this was a short-term measure and hoped to reopen them. Short breaks were available to Child Y on some occasions from August 2020.
21. In April 2022 the Council again wrote to parents/guardians of those entitled to short breaks. It said that it had not been able to reopen the short breaks centres due to staffing issues and COVID-19. It would condense short breaks services to only one centre, Centre 2 and all services would be delivered from Centre 2. It hoped to review the situation in six months and reopen the other centres.
22. The Council assessed all the children that were eligible for short breaks to see whether alternate choices would be possible. It offered short breaks for Child Y at Centre 2, however, Mrs X declined this as she felt Centre 2 was far away and would disrupt Child Y’s school and daily routines. Mrs X hoped that when Centre 1 re-opened, Child Y would be able to return to Centre 1.
23. The Council offered Mrs X that it would pay for a carer to attend and provide short breaks in the home. It also awarded a payments for breaks for the family and offered to pay mileage and carer fees for family members who visited to provide short breaks.
24. Mrs X also tried to access short breaks services at Centre 2, after it became obvious Centre 1 was not reopening. She first enquired in August 2022 but was told in November 2022 there was no capacity.
25. The Council amended Child Y’s EHCP in to say they were still entitled to short breaks, however it had to change how it was being delivered and alternatives were being sought.
26. Mrs X complained to the Council. She said;

• Child Y had not had access to their full short breaks entitlement
• The short breaks support was often cancelled, which had an impact on the whole family
• The situation had been continuing for over a year without resolve

27. At stage one the Council said it upheld Mrs X’s complaint. It said that COVID-19 had put significant pressure on the service and it had not been able to deliver services due to a shortage of resources and staff. It said it would try to implement the short breaks care where possible.
28. Mrs X asked to escalate her complaint to stage 2.
29. The independent persons report at stage 2 and the adjudication letter also upheld Mrs X’s complaint. It agreed that Child Y had not been able to access the short breaks services set out in their provision and support plans. It was trying to deliver alternatives, however it could not deliver the agreed support.
30. Mrs X remained unhappy with the Councils response and asked to escalate her complaint to a stage three review panel. The Council said it could not do more to consider Mrs X’s complaint as it had upheld her complaint. It directed Mrs X to the Ombudsman.
31. Mrs X remained unhappy with the Councils response and bought her complaint to the Ombudsman.

Analysis

Statutory complaints process

32. The statutory complaints process sets out a three-stage process which Councils have to consider some complaints under. This includes complaints about children in need or children with disabilities.
33. The Councils duties under the process are statutory. The Council has a duty to carry out a stage three where an agreement with the complainant could not be reached. There is some discretion to make an early referral to the Ombudsman at the end of stage two if the complaint has been fully upheld and the Council has agreed to the desired outcomes.
34. The Council told Mrs X after stage two that it could do no more to resolve her complaint and signposted her to the Ombudsman. I do not consider that this was an agreement between Mrs X and the Council to end the process and make an early referral. The Council had not been able to confirm it could meet Mrs X’s desired outcomes. This was fault by the Council as it has a statutory duty to carry out a stage three.
35. However, given the time passed and the unlikelihood of the Council being able to resolve Mrs X’s complaint as it had already been upheld, I consider that Mrs X is happy for the Ombudsman to investigate her complaint at this stage. Therefore, I have exercised discretion to consider the complaint. I do not consider the fault by the Council in not carrying out the stage three has caused Mrs X injustice as the Ombudsman has agreed to investigate the complaint.

Short breaks services

36. The Council has already upheld that Child Y has not been able to access the short breaks that were recorded in their EHCP and CIN plan.
37. The Council has recognised that it has not been able to recruit and keep the staff needed to deliver services. It therefore had to consider alternatives, which is why it assessed Child Y to see what other support it could provide.
38. The Council has provided support which it feels is like what Child Y would be receiving and within the Councils capacity to deliver. The Council accepts it is not the provision that was previously agreed and this has had an impact on the whole family.
39. Mrs X says that delivering the short breaks in the home is not suitable because it does not truly give either party a break. The family continues to be woken up by Child Y, and Child Y remains restless when they wake up as they are aware Mrs X is nearby. Mrs X says the continued disruption has an impact on the whole family. It means they often cannot make plans together and this impacts the time they spend with their other child, as well as the time Child Y should have for socialising and accessing other opportunities.
40. It is clear from the documentation there have been failings in the service the Council has provided to Mrs X. The Council accepts Child Y needed short breaks and not provided the agreed support, so tried to provide alternatives.
41. I note the work the Council is doing to try and improve services, including having regular reviews and carrying out new recruitment and retention schemes. I welcome the Councils comments about how it will continue to work with families and try to address the problems.
42. I recognise there is a nationwide shortage in staff for residential short breaks services. However, the statutory guidance is clear that if a council is satisfied it is ‘necessary’ to provide support services, then it must provide them, regardless of their resources. While I acknowledge that this is a service failure, it has still caused continuing distress to Mrs X and Child Y. Failing to deliver the agreed provision remains fault by the Council.
43. The lack of support and short breaks support outside the home has had a significant impact on Mrs X’s family. The Council has accepted the findings and recommendations made by the independent investigator and has apologised for the failings in its service. This is to be welcomed, but I do not consider the apology to be a satisfactory remedy for the injustice these failings have caused Mrs X and her family.
44. Having upheld Mrs X’s complaints I have considered a financial remedy in recognition of the impact the failings have had on Mrs X and her family would be appropriate.

Back to top

Agreed action

45. Within 4 weeks the Council has agreed to

• Write to Mrs X and apologise for the fault identified.
• Pay Mrs X £500 in recognition of the distress caused to Mr and Mrs X and their other child because of the lack of short breaks provision.
• Pay Child Y £500 in recognition of in recognition of the distress and difficulties he experienced because of the lack of provision.
• Ensure it has a process in place to continually communicate with Mrs X about the changes in service and whether Child Y will be able to access the previous provision, or provision of a similar setting and frequency.

46. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

47. I have completed my investigation. I find fault with the Council for failing to provide the agreed short breaks services.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman