Summary: Mrs B complains about the lack of support from the Council in respect of her daughter’s social care needs and the associated needs of other family members. The Ombudsman finds there was fault by the Council in these matters, leading to injustice for which a remedy has been agreed.

The complaint

1. The complainant, Mrs B, complains about the actions of the Council’s social care department in respect of her disabled daughter, C, who is deafblind and whom she reports has been denied services since 2014. She complains that failings by the Council have led to a lack of service, impacting on C and her family.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. If we are satisfied with a council’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 considered all the information provided by Mrs B about her complaint. I made written enquiries of the Council and took account of the information and evidence it provided in response. I have taken account of the Ombudsman’s guidance on remedies.
7. Although the matters complained of date back more than 12 months before Mrs B complained to the Ombudsman, I have exercised discretion to investigate them. The circumstances of this case, set out in this statement, justify this because Mrs B was told initially and incorrectly that her daughter did not meet the criteria for assessment for services. Following on from this Mrs B continued to strive for services to meet the needs of her daughter and other family members, before making a formal complaint.
8. I provided Mrs B and the Council with a draft decision and took account of all comments received in response.

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What I found

Background

9. Mrs B has three children. One of the children, C, is deaf-blind, being profoundly deaf with a sensory processing disorder, and since 2016 she has had a diagnosis of autistic spectrum disorder (ASD) and pathological demand avoidance.

The relevant law on 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. (Children Act 1989, section 17). A disabled child is a child in need.
11. Local authorities carry out assessments of the needs of the child to determine which services to provide and what action to take. They have a positive duty to take reasonable steps to identify children in need within their area and, when identified, to undertake an assessment of those needs.
12. As part of their services to families, councils must offer carers of disabled children short breaks from caring to help them look after their children at home. (Children Act 1989, Schedule 2, paragraph 6)

Statutory guidance

13. Statutory guidance (care and support for deaf-blind children and adults policy guidance) under Section 7 of the Local Authority Social Services Act 1970 (for children) and section 78 of the Care Act 2014 (for adults) sets out requirements for local authorities.
14. The guidance states that local authorities duties include:

• ensuring assessments of need for care and support are carried out by people with specific training and expertise;
• providing appropriate services for deafblind people; and
• providing specially trained one-to-one support workers when necessary.

15. The guidance says the term multi-sensory impairment can be used interchangeably with deafblindness. It notes that for children, the early identification of difficulties and effective intervention to meet needs is crucial to ensuring their health and wellbeing and should be part of Cl’s strategy for securing childcare and education opportunities from early years through to adulthood. Significantly, the guidance states that local authorities should ensure that as soon as they identify that a child may be deaf-blind / multi-sensory impaired, a specialist assessment is arranged and that this and any subsequent assessments are carried out by a specially trained person or team equipped to assess the needs of a deafblind child including communication, one to one human contact and social interaction, support with mobility, assistive technology and habilitation.
16. Mrs B first asked the Council for support from children’s disability services and for respite in 2014. She continued to ask for support for C, for direct payments to provide social support for her, and for respite provision both before and after her diagnosis of ASD. No support was provided. Although a sensory specialist had been involved in 2015 and had recommended that the Council complete a social work assessment including specialist input, this was not done. Following a referral in 2016 there was an assessment in February 2017 which resulted in a recommendation for short term intervention under a Child in Need (CiN) plan with a view to identifying support services, funding options and so on to allow C to access more activities in the community. However, at sign off, a manager made the decision that C did not meet the criteria for support. But adult eligibility criteria were wrongly being applied. That was fault. C did meet the criteria for assessment and had done so since 2014 because she is profoundly deaf, but none was completed.
17. In July 2017 a further referral led to a visit in August by a manager accompanied by the sensory specialist who had been involved in 2015. The manager considered relevant criteria were met and assessment was needed, but failed to record the points agreed. That was fault. The Council then received a specialist sensory assessment in mid-September which confirmed the view that C needed a Multi-Sensory Impairment (MSI) assessment in line with relevant DeafBlind Guidance. But no assessment was done until February 2018. At sign off on this occasion, the Council accepted C did meet the criteria for support.
18. The Council proposed at this point to complete a short assessment with input from a sensory impairment specialist worker. This would then be discussed at a panel which would look at what resources might be able to meet the needs identified by the assessment. The agreement was that a more comprehensive assessment would be completed following this short one. The short assessment was dated 7 March 2018 and it noted the need for further information gathering work to be done. The recommendation of the short assessment was that the panel explore awarding direct payments to allow a personal assistant (PA) to be recruited to support C in activities outside the home (thus also giving Mrs B some respite): it was not specific in terms of hours of support but noted Mrs B’s request was for more than eight hours a week in school holidays. Mrs B reports that she was informed an MSI assessment would be completed, and this was again requested by the sensory specialist. But this was not done. The Council said such assessment was not something it would fund.

First support is approved

19. In March 2018 the panel approved six hours support a week for social and leisure opportunities for C. Eight hours had been requested. Although Mrs B had a right to request a review if she disagreed with this outcome, since this was considered an interim measure until the full assessment could be completed it was not unreasonable for her to await that. Mrs B says she had been advised a more comprehensive assessment would be completed.

Direct payments

20. Once a council has decided on a person’s eligible needs, it can either provide or commission the services for the person, or if they prefer, the council can give them a cash payment (a direct payment) so they can organise their own care.
21. Direct payments (DPs) provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The council has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.

Direct payments are awarded

22. Direct payments (DPs) were awarded for the six hours a week, and an additional £150 was made available for recruitment of a PA through a provider of DP support services. Mrs B was not offered any alternative to DPs. The Council says that this was because due to the nature of C’s needs, wanting to be able to access mainstream activities but needing support, there was no like for like service that could be offered. The Council said Mrs B knew people in the deaf community that she could engage with in finding a PA. But Mrs B made clear she was struggling and feeling confused and frustrated, and the Council’s records reflect this. The provider of DP support services was unable to find a suitable person. Mrs B asked the Council for a further £150 recruitment funding, but this was refused. The Council did not then provide clear information about whether accrued DPs could be used to fund more recruitment efforts. The Council accepts there were delays in supporting Mrs B when difficulties arose, and it says this was due to significant staff shortages. The Council’s failings in respect of support with the DPs were fault.

What happened next

23. For three months, between December 2018 and February 2019, C was without an allocated social worker, and the Council has acknowledged there were other times when social workers were absent due to sickness. It also acknowledges that Mrs B had asked for a change of social worker in mid-September 2018 and this did not happen until mid-February 2019. The relevant team manager was absent in this period.
24. Once a new social worker was assigned, they visited Mrs B in February 2019 with a senior family support worker. The Council noted on its records that the DPs for six hours a week support were not being used due to difficulties with recruitment, and that the social worker advised she would look at this to see what support might be best for C. A further visit took place in March 2019. Mrs B said that C likes sports and that activities such as horse riding and swimming meet her needs in terms of occupational therapy and could be activities she could do with a PA. But Mrs B felt the six allocated hours were inadequate and she reported that she was unable to fund such activities herself when caring for the family meant that she was unable to work. Mrs B also voiced concerns about how to support her other children with attending their own activities, because C’s disability and associated behaviours made this very difficult and she often refuses to leave the house. Mrs B said she needed more than DPs and said that she needed someone to help at home a few hours some nights after school to build a bond with C and allow her more time with the other children. Mrs B also said she needed respite for herself. The social worker at this visit said she had not bene tasked with starting a new assessment for C, but subsequently confirmed on 1 April that she had now been asked to do this.
25. In mid-May 2019 Mrs B called the Council. The records of the call describe her as being very distressed and drained. Noted actions to follow this call included the social worker to commission a deaf-blind assessment (a multi-sensory assessment being deemed appropriate to best inform an assessment of C’s needs as a deaf-blind person, given her combined sight and hearing loss); further work to be done to try to identify suitable PAs for C; and options for respite for C at school to be explored. It was also noted that the social worker felt Mrs B needed a carer’s assessment.
26. At the end of June 2019 the report commissioned from a consultant to people with multi-sensory impairment recommended C be provided with a learning support worker / intervenor who is trained in C’s highly individual multi-sensory needs and in British Sign Language. Specialist advice in a separate document from the consultant in July noted that support staff / intervenors would need their own transport to enable C to access community and transport costs, and that sustenance and entrance fees for activities needed to be included in the budget; 2:1 support was needed accessing community activities and 1:1 support for home based activities; also a training budget was needed for intervenor training, cochlear implant training, and positive intervention training. A support worker might need also need funding for enhanced DBS and training. The report noted Mrs B would need considerable support to manage DPs and regular reviews would be needed. The report stated: “Whole family need support”.
27. Between June and August 2019 there were further changes of social worker. The Council’s records show that it was trying to find a service provider to assist and there was liaison with Mrs B. On 11 July an internal email said: “We need whole day activity for [C] and we need to sort this as this is edge of care and we cannot afford her to come into care because we haven’t done what was needed’. The notes then show the county manager agreed to support of 30 hours a week for 2:1 planned structured activity. The Council says the basis for this was the crisis situation Mrs B was reporting, and that it did not put this offer formally to Mrs B in writing because it was not possible at this point to say what support C would need and would accept: it could vary from six hours in school terms to up to 30 hours in school holidays. These increased hours were not based on assessment of need: the full assessment which was to follow the interim assessment of March 2018 had still not been completed. That was fault.
28. In August 2019 Mrs B met with a social worker and the county manager. The Council apologised for the fact that Mrs B had been asked to contact support agencies herself and acknowledged that staffing difficulties ought not impact on the child. Mrs B confirmed she still had the float from the previously agreed DP package, as no suitable support had been found. The Council noted C had visited one possible provider and this had not been wholly unsuccessful, and so it said it would look at how this could be commissioned to meet C’s needs. The Council then continued to contact possible support providers and make enquiries about how it might find appropriately trained intervenors / support workers: it noted it would be willing to fund upskilling of appropriate staff if necessary.

Mrs B’s formal complaint to the Council

29. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
30. In March 2018 when Mrs B established that incorrect eligibility criteria had been applied to her request for services for her daughter since 2014, she made a formal complaint to the Council.
31. The statutory complaints process found there had been numerous faults in the way the Council had dealt with this matter. In summary, the principal findings were that:

• The Council had failed to act in respect of C as quickly as possible, leaving the family without access to services. C does meet the criteria for a service from the Children’s Disability Service, and the Council should have provided the necessary funding to adequately meet her needs.
• There were numerous communication failings. Some requests for information and contact were not actioned, and some information provided or shared was inaccurate; and
• The Council had failed to offer carer’s assessments to Mrs B and to C’s siblings.

32. A further head of complaint, that the Council failings had impacted on C’s mental wellbeing which in turn had had a detrimental effect on the rest of the family including Mrs B having to give up paid employment, was deemed inconclusive. The stage 3 complaint panel did find however that the social care records the investigating team looked at to evidence their findings at stage 2 were incomplete and out of date, which was fault.
33. In addition the stage 3 complaint panel found flaws in the Council’s complaint process including delay, a failure to provide the statutory guidance document ‘Getting the best from complaints’; taking an offer of a meeting made after stage 1 off the table when the complaint went to stage 2; and at stage 2 only looking at those complaints which had not been upheld at stage 1.
34. The stage 3 panel made 13 recommendations, the key points being that Mrs B should be contacted with an offer to meet the county manager as a matter of urgency (this meeting is referred to in paragraph 28 above); and that the Council should acknowledge quickly and in a meaningful and appropriate way the stress and anxiety suffered by Mrs B and her family for the lack of service and support. The recommendation was that this should include compensation to C’s eldest sibling for the missed opportunities of being able to spend time away from her sister and for the stress and anxiety this had caused her; and compensation for C for the delay in and lack of appropriate services.
35. Responding to Mrs B after the stage 3 panel, the Council said that in terms of compensation for C, the DP had not been used and it would not be appropriate to compensate for services that had been awarded but not taken up. Regarding C’s eldest sibling, the Council she would have time away from C through normal children’s activities including school and so it would not be appropriate to compensate her. In terms of acknowledgement of stress and anxiety suffered by Mrs B and her family for the lack of service and support, the Council offered unreserved apologies for failings identified by the complaints process and £250 in recognition of time and trouble taken in pursuing the complaint.
36. I will return to the matter of remedy later in this statement.

Action after the complaints process

37. A child and family social work assessment was completed on 18 September 2019 and was authorised in mid-November by the team manager. Mrs B raised several issues with this assessment and the Council says it is trying to work with her now to ensure there is a mutually agreed document which clearly sets out C’s needs, alongside those of the wider family. The Council said in responding to my enquiries that it was also is working with Mrs B, with C and with her school, and progress was being made towards a formal Child in Need plan. A new experienced and permanent social worker was assigned to work alongside C and her family in October 2019 and was working to build a relationship with C to enable an update to be made to the assessment document which properly reflects her needs. In addition to this, the Council says an agency with the requisite skills to support C had been identified and has now been working successfully with C and Mrs B for a number of months. Mrs B reports that this support has not been successfully implemented, however my investigation cannot encompass any period which was not part of the complaint at the time it was made.
38. The Council accepts that there has been a history of Mrs C feeling unsupported and let down by its responses to C’s needs and how best to respond to these, and it acknowledges that there have been numerous changes of social worker which has not helped in building necessary working relationships. Now Mrs C appeared to be building a good relationship with the allocated social worker, whom it described as supportive, responsive and reliable, matters were said to be improving. Mrs C agrees she has a good working relationship with the social worker now.

Analysis

39. Overall, the investigation of Mrs B’s complaint under the statutory complaints process was satisfactory. The issue for me therefore concerns whether the Council properly considered the findings of that investigation and the recommendations which resulted from it, and my conclusion is that it did not.
40. The Council made its offer of an apology plus £250 and drew up an action plan. In addition to actions for writing up the assessment and contacting agencies to seek to secure appropriate support for C, the plan included a recommendation for carer and young carers assessments to be offered to Mrs B and to C’s eldest sibling; a CiN plan to be put in place to confirm the support needed; and payment to be made to Mrs B for wraparound childcare costs incurred by Mrs B for her youngest child as a result of C’s needs.
41. It has already been noted that the 2019 assessment, once written up, led to numerous objections from Mrs B and ongoing work is being done on this to reach agreement between Mrs B and the new social worker. Mrs B has concerns that the assessment does not for example reflect C’s needs as set out in the multi-sensory assessor’s report, but it will ultimately be a matter for the Council to determine what the final assessment will set out in terms of required provision. That assessment will also feed into the CiN plan.
42. Regarding carer and young carer assessments, when it responded to my enquiries initially the Council said that young carer assessments had been offered in the past but declined. But it was not able to evidence this, and Mrs B says no carer assessments were offered. If assessment had been offered and declined this should have been clearly documented, and a failure to do so would be fault. In terms of more recent action regarding such assessments, which had been recommended in the social care assessment of 2019, the Council has said that the new social worker has not yet established whether this is something Mrs B or the family would want or benefit from and that referrals will be made for such assessments if and when it becomes appropriate. However, given that Mrs B has complained about the lack of these assessments it would be appropriate to offer them, and if they are then declined, that should be recorded. I have made a formal recommendation in respect of this at paragraph 51 below.
43. Insofar as a payment for childcare costs is concerned, the Council has said a payment of £700 was made to Mrs B towards the cost of childcare in the summer holiday period. Mrs B says she never received any such payment from the Council for childcare, and she has referred to £700 being held as unused funds in the DP account. The evidence seen suggests that what may have happened is that Mrs B was told she could use the unused DPs to pay for the childcare, rather than this being an additional £700 payment. But the facts around this are unclear, and Mrs B appears to have been given conflicting information about how the funds in the DP account may be used.
44. I have set out at paragraphs 31-33 above the failings established by the statutory complaint investigations. Those failings were all fault.
45. In addition, the Council failed to properly consider the recommendations of the stage 3 panel in terms of what it referred to as ‘compensation’. In taking the view that it was not appropriate to compensate for services that had been awarded but not taken up, it failed to take account of a potential loss of provision since 2014 and for the fact that Mrs B had struggled to find suitable support for C to purchase with the DP awarded, which the Council had been aware of. Given that the DP was not working to meet C’s needs, the Council should have been proactive in looking at alternatives. The failure to do so was also fault. Regarding compensation for C’s eldest sibling in respect of lost opportunities for respite from C, in taking the view that this was not appropriate because such opportunities were provided through normal children’s activities including school and any extra-curricular activities, that failed to take account of fact that C’s sibling was unable to access a lot of activities because Mrs B could not arrange this while fully occupied meeting C’s needs.
46. Further, although the Council agreed in May 2019 that C could have support of 30 hours per week, at a time when it was accepted the family was in crisis and that C was ‘on the edge of care’, this support was not actually provided as no suitable provider was identified. Given that this support was accepted as a need, the failure to ensure it was provided was fault.

Injustice to Mrs B, to C and to their family

47. The failings identified have led to injustice for Mrs B, to C, and to their family.

• Mrs B suffered distress as a result of the lack of support provided to her and to her family. She suffered frustration as a result of failings in communications, delays and lack of progress towards the identification and meeting of needs, and this caused a loss of faith in the Council and its services. In addition, she was put to considerable time and trouble seeking to advocate for her daughter to get services and in pursuing her complaint.
• C suffered a lack of services as a result of the Council’s failure to acknowledge she qualified for assessment to identify social care needs and how these would be met. The delay in obtaining assessment by a specialist in multi-sensory impairment in line with the statutory guidance was significant. There is uncertainty about the level of services she may have been entitled to, had the failings identified not occurred. Poor service from social workers led to upset and frustration and meant that she did not build relationships of trust from which she might have benefitted.
• Because of the lack of a young carer assessment, C’s eldest sibling lost the opportunity for services to support her in terms of respite from C.
• C’s family as a whole was impacted by all the above.

Agreed action

48. In terms of a remedy for Mrs B’s complaint, I have noted at paragraph 40 that that at the conclusion of the statutory complaints process the Council offered Mrs B apologies and a payment of £250. During my investigation the Council increased its offer of remedy to Mrs B to a total of £1,150. I formally recommended that the Council pays this sum within four weeks of the date of the decision on this complaint.
49. In addition, taking account of the prolonged period covered by the failings identified and the Ombudsman’s guidance on remedies, to remedy the injustice described at paragraph 47 above I recommended that within four weeks of the date of the decision on this complaint the Council:

• Issues a further formal apology acknowledging the failings identified and their impact;
• Pays £1,500 to Mrs B on behalf of her daughter C;
• Pays £500 to Mrs B on behalf of C’s eldest sibling; and
• Pays £1000 to Mrs B on behalf of the whole family.

50. In the same time period I also recommended that for the avoidance of doubt the Council provide Mrs B with clear and unequivocal information about the way in which funds held in the DP account may be used and confirmation that they do not need to be repaid to the Council.
51. Further, I recommended that within three months of the date of the decision on this complaint the Council:

• Completes the revisions to the assessment of C’s needs;
• Offers and completes carer and young carer assessments (unless these are refused, in which case the refusal should be documented);
• Puts any services deemed necessary to meet needs identified by the above assessments in place, and takes any other actions deemed necessary in respect of CiN planning, within four weeks of completion of those assessments; and
• Reviews lessons learned from the complaint, resulting in a plan to address all identified shortcomings, with timescales. This should include the areas of record keeping, communications with and support for service users or potential service users, complaint handling, and commissioning arrangements where services are required to meet needs. It should also include ensuing that relevant staff are reminded of the statutory guidance on care and support for deaf-blind children and adults and of the need to ensure appropriate MSI assessment is promptly arranged where appropriate.

52. The Council should provide evidence of all the above actions to the Ombudsman.
53. Finally, I recommended that a senior member of staff undertake regular monthly oversight of progress of all the above matters to guard against further drift and ensure accountability.
54. The Council has agreed to these recommendations.

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Final decision

55. I have completed my investigation on the basis set out above.
56. 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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Investigator's decision on behalf of the Ombudsman