Summary: Mr and Mrs B complain about the way the Council handled the provision of social care support for their daughter. There was fault by the Council that caused injustice to Miss Y and Mr and Mrs B. It will apologise and make a payment to them.

The complaint

1. I call the complainants Mr and Mrs B and their daughter Miss Y. They complained about how the Council handled their daughter’s social care needs. In particular they complained that:
• The recommendations from the social care assessment were not put in place;
• A social care support plan was not drawn up;
• A parent carer assessment was not completed in its own right;
• Miss Y’s Education Health and Care Plan (EHCP) was not completed because the social care element was not finalised;
• There was no response to Mr and Mrs B’s request for the package of care to be managed by the Council;
• There was no formally agreed independent advocate in place for Miss Y; and
• There was a continuing pattern of prejudice, delays and poor communication.
2. They said that as a result Miss Y did not receive the care and support she needed and that had a detrimental impact on her and the rest of the family who hadto provide support.

Back to top

What I have investigated

3. We agreed to investigate this complaint in September 2020. It in part concerned ongoing matters. We took the exceptional step of incorporating some of them into this investigation because of the history of complaints between the Council and Mr and Mrs B. But I did not investigate all of the matters that arose during the period of the investigation.

Back to top

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 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 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)

Back to top

How I considered this complaint

6. I considered the complaint and documents provided by Mr and Mrs B and spoke to them. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr and Mrs B and the Council and considered their comments.
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.

Back to top

What I found

Legislation and statutory guidance

Social Care – Child in Need and Carer Assessments

8. Section 17(1) of the Children Act 1989 gives councils the duty to safeguard and promote the welfare of children within their area who are in need, and promote their upbringing by their families, by providing a range and level of services appropriate to those children’s needs. Councils should assess children they believe to be in need using their local assessment procedure.
9. Section 97 of the Children and Families Act 2014 requires councils to assess parent carers on the appearance of need or when an assessment is requested by the parent. The assessment must include an assessment of whether it is appropriate for the parent to provide, or continue to provide, care for the disabled child, in light of the parent’s needs for support, other needs and wishes.
10. The council must decide whether the parent needs support, whether the child has needs for support and whether those could be met by services under section 17 of the Children Act. Services to be provided for parent carers of disabled children can be included in Section H1 of the EHC plan.
11. The council does not have to carry out a parent carer’s assessment if it has already carried out a care-related assessment of the parent carer in relation to the child or young person they are caring for. The exception is where the council believes the carer’s needs have changed since the last care-related assessment. Councils must be able to show how they have had regard to the well-being requirements of the parent carer.
12. Councils must take a child-centred approach and encourage advocacy for young people where appropriate, assisting them to put forward their views.

Personal budget and Direct Payments

13. A special educational needs personal budget is an amount of money identified by the council to deliver provision set out in an EHC plan. Councils must ensure that children and young people with EHC plans get a level of support that helps them achieve the best possible educational and other outcomes. The council can identify elements of the provision to be made with a direct payment to the parent. For example, direct payments can be used to meet the social care needs of a young person.
14. Councils have a duty to monitor the use of direct payments through an up to date plan setting out their assessed needs. The council can then ask parents to provide information about how they have spent their direct payments including receipts.
15. The Council can also provide support through notional payments. This means the Council retains the funds and commissions the provision.

Background

16. At the time of this complaint Miss Y was a 17 year old young person with diagnoses of Autism Spectrum Disorder and Pathological Demand Avoidance, Generalised Anxiety Disorder, Sensory Processing Difficulties. Pathological Demand Avoidance (PDA) is a condition causing difficulties affecting a wide range of behaviour. It makes people tend to withdraw from or reject support from those who offer it.
17. Miss Y had an Education, Health and Care plan since 2017. The Council had also considered Miss Y to be a child in need.
18. The Council provided Miss Y’s parents, Mr and Mrs B, with direct payments from 2013 until November 2018 to meet Miss Y’s social care needs These were originally set up through a payment plan in April 2013 to support the family to meet Miss Y’s social care needs through employment of a personal assistant, Ms R. They also covered respite, breaks and social opportunities for the family. When the Council stopped direct payments (in November 2018) Ms R was then re-employed in a different role as her educational tutor, starting in July 2019.
19. We considered a complaint from Mr and Mrs B and issued a decision on that complaint in February 2020.

Provision of social care support

20. At the end of March 2020 the Council assessed Miss Y’s needs and also assssed Mr and Mrs B’s needs as carers. The assessment report was approved at the end of April. In June the Council agreed to provide 15 hours social care support to Miss Y as recommended in the assessment.
21. Mr and Mrs B immediately told the Council they did not want to be responsible for managing direct payments because of their previous experience with the Council which was the subject of the complaint to us.
22. Over the next six months this failed to be resolved. Mr and Mrs B were clear about their position of not being able to manage a direct payment arrangement. In October it appeared the Council started to consider notional payments but it had legal advice that Miss Y would need to agree to this. At the beginning of November the Council wrote to Miss Y asking if she wanted direct payments. This said there had been some correspondence from her parents suggesting she did not want direct payments but it had a duty to offer it to her. It asked her to provide written confirmation of her position with the help of Ms R.
23. In response to my question about why the Council considered it necessary to have Miss Y’s written confirmation it has provided no clear explanation. It said if Miss Y did not reply it would not have prevented the Council making the provision through notional payments.
24. It was wrong the Council did this. Miss Y’s needs and difficulties around communication are not in dispute and this direct approach, without good reason, was unnecessary. Also, there was a failure before this point by the Council to actively pursue how it was going to make the social care provision once it was clear that direct payments were not going to be possible.
25. Mr and Mrs B further complained about the lack of support planning as part of the child in need process; that needed to form part of the planning of how the support would be delivered to Miss Y. The first child in need meeting after the April assessment was in late October.
26. Mr and Mrs B were unhappy about the meeting and the follow up from it. I have not considered the detail as the key point was that it was part of an overall failure by the Council to ensure there was planning for how the agreed support could and would be provided.
27. The EHCP was agreed and finalised in December.
28. These combined failures meant Miss Y did not receive the support she was identified as needing in March 2020 and that was agreed in June. It was not only Miss Y who suffered as a result. It also had an impact on Mr and Mrs B, both in having to provide support themselves but in also pursuing the matter with the Council. The lack of support would inevitably have affected Miss Y’s siblings too.

Educational provision

29. Mr and Mrs B also requested a notional budget for the education package at the same time as for the social care provision. That remains unresolved.

Advocacy

30. As part of our findings on the previous complaint we made a recommendation for independent advocacy for Miss Y. There was considerable correspondence between the Council and Mr and Mrs B about this.
31. Mr and Mrs B and Miss Y wanted Ms R to act as her advocate. The Council’s view was that Ms R could not be considered to be an independent advocate because she provided other support and services to Miss Y. I accept the Council’s point that she could not be referred to as an independent advocate but this touched upon a wider, and significant, point.
32. Because of Miss Y’s conditions she was not seen by the social worker who carried out the assessment or by other Council social care professionals. It was accepted Miss Y takes a long time to trust new people so the provision of advocacy was not straightforward. In November the Council insisted it needed to see that Miss Y had been offered the chance of advocacy other than by Ms R. Mr and Mrs B said the very nature of Miss Y’s conditions meant she could not provide the direct contact the Council was insisting on.
33. In responding to our enquiries about this complaint the Council said Mrs B refused to allow the Council to get to know Miss Y. I consider this was indicative of the Council’s underlying view – that it had concerns about the role Mr and Mrs B were playing in Miss Y’s life. In responding to my question on this point the Council said that no safeguarding concerns had been raised by the relevant professionals involved with Miss Y. But the Council’s approach both to advocacy, and the direct payments which I refer to above, suggests to me it was not certain it was hearing Miss Y’s voice either through Mr and Mrs B or Ms R.
34. The Council’s approach about an advocate was inconsistent and too rigid. But it did later accept Ms R to act as an advocate for Miss Y.

A parent carer assessment

35. The assessment in March 2020 identified Mr and Mrs B had support needs arising from their caring responsibilities. Mr and Mrs B considered that should be in a separate stand-alone assessment. In December the Council provided the format for such an assessment to Mr and Mrs B. Their response was that it was really no different from the one that had been done in March so they would not complete another.
36. It was not fault for the parent carer assessment to form part of the overall assessment. But what mattered was what then happened to put support in place. There was no action and that was fault.

Conclusion

37. Miss Y is 18 at the end of March and will transfer to adult social care services then. Preparation for that has started. Mr and Mrs B complain that process was delayed as the Council did not make the referral soon enough. That has not been part of the complaint I have investigated. But I accept this change in how support will be provided to Miss Y is relevant to how I consider a remedy for the faults found.
38. The faults meant there was no support in place for a year. I therefore consider the remedy should reflect the loss of provision from March 2020 to March 2021.

Agreed action

39. I identify above where I consider there was fault. The result of this was that Miss Y and the family did not have the support that was identified as needed in March 2020. To remedy this the Council will, within one month of the final decision, pay Mr and Mrs B £250 and Miss Y £1500. It should also apologise.
40. The Council will also have arrangements in place for a notional budget for the educational provision by the end of April.

Back to top

Final decision

41. There was fault by the Council that caused injustice to Miss Y and Mr and Mrs B. The Council will apologise and make a payment to them.

Back to top

Investigator's decision on behalf of the Ombudsman