The Investigation

The complaint

1. Miss X complained the Council failed to meet her two children, F and G’s assessed social care needs between July 2020 and January 2022 when it refused to pay the correct level of direct payments to secure the required support. Miss X said the Council also failed to adequately deal with her complaint about the matter and then delayed putting things right after accepting fault.

2. Miss X says F and G lost out on a significant amount of social care and development during this period which has caused distress and uncertainty. Miss X says the matter has caused her significant stress, uncertainty and time and trouble.

Legal and administrative background

Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

4. 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.

Legislation and guidance Disabled Children

5. 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. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.

6. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in section 2.

7. Services which can be provided under section 2 of the CSDPA include:

• practical assistance in the home including home based short breaks / respite care;

• recreational / educational facilities including community based short breaks; and

• travel and other assistance.

Assessment of need

8. If a council is satisfied it is ‘necessary’ to provide support services under section 2 of the CSDPA then services must be provided regardless of the council’s resources.

The Children’s Statutory Complaints Procedure

9. The Children Act 1989 and statutory guidance ‘Getting the Best from Complaints’ outlines a statutory complaints process which councils must follow for certain complaints about children’s services. The procedure aims to ensure children and young people have their concerns resolved swiftly and, wherever possible, by the people who provide the service locally.

10. The statutory complaints process has three stages:

• Stage 1 - Local resolution by the council;

• Stage 2 - An investigation by an independent investigator not involved with the case, who will prepare a detailed report and findings. The council then issues an adjudication letter which sets out its response to the findings;

• Stage 3 – If a person making the complaint asks, an independent review panel will consider their representations.

11. The timescales in working days for the procedure are:

• 10 days at stage 1 (with a further 10 days for more complex complaints);

• 25 days at stage 2 (with maximum extension of 65 days);

• 20 days for the complainant to request a review panel; and

• 30 days to convene and hold the review panel at stage 3.

Direct payments

12. Parents/carers of disabled children can ask for a direct payment (DP) to meet the needs of the child. The council must carry out an assessment and DPs must be sufficient to meet the assessed needs. DPs must be used by the parent/carer to meet the child’s needs.

The Equality Act

13. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.

14. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.

15. The protected characteristic relevant to this case is disability.

Indirect discrimination

16. Indirect discrimination is when there is a practice, policy or rule which applies to everyone in the same way but disadvantages a group of people who share a protected characteristic.

How we considered this complaint

17. We spoke to Miss X about her complaint and considered information she provided.

18. We considered the Council’s response to our enquiry letter.

19. Miss X and the Council had the opportunity to comment on the draft report. We considered comments before we made a final decision.

What we found

What happened

20. Miss X has two disabled, teenage children, F and G who both have multiple disabilities including visual impairments and complex communication needs. They both have Education, Health and Care (EHC) plans. They both received one-to-one support to access social activities in term time and the school holidays.

21. In February 2020 Miss X complained to the Council about a failure to carry out specialist assessments of F and G. She also complained that the Council’s Direct Payments Policy only allowed her to pay support workers for F and G a maximum of £8.21 an hour which was not enough to commission the specific specialist support workers which F and G needed. To put this into context, the national living wage at the time was £8.72 an hour. The Council responded at stage 1 of the statutory children’s complaints procedure. It stated the cost of specialist workers did not form part of the direct payment. Miss X asked the Council to consider her complaint at stage 2.

22. The Council carried out social care assessments for both F and G in May 2020. The assessments recognised that both children had multiple disabilities and care and support packages were needed to help them progress to their full potential. This included support from specialist support workers with specific relevant skills and qualifications.

23. The Council agreed to social care packages for them in July 2020, with both entitled to support in term time and during school holidays. The Council assessed F as needing 13 hours of support each week in term time and 17 hours of support each week during school holidays. G was assessed as needing 21 hours a week term time and 25 hours a week during school holidays. The Council said its approved agency (provider A) would provide the relevant staff. The Council paid provider A directly at a rate of £25 an hour.

24. In August 2020 Miss X contacted the Council about the direct payment rates. Miss X wanted the Council to pay her direct payments so she could source her own specialist provider. Miss X said the Council was only offering £8.21 an hour (which was below the national minimum wage for people aged 25 and over at the time) in direct payments to her. However, it was paying provider A directly £25 an hour.

25. In September 2020 Miss X raised concerns with the Council about provider A. She said it was not providing all the hours that F and G were entitled to, and the staff were not appropriately trained. She said provider A did not cover some of the sessions at all. Miss X asked the Council when provider A would be able to cover all the hours F and G were entitled to.

26. In November 2020 the Council responded to Miss X. It said this was a further response to its stage 1 response provided in February 2020. It confirmed the Council was paying for support workers at £25 an hour. It said its new direct payment rate was £8.90 an hour. It did not explain to Miss X why it would not pay her the £25 an hour rate to source her own provider.

27. In December 2020 Miss X asked the Council to escalate her complaint to stage 2 of the statutory complaints procedure. She said provider A was consistently failing to deliver the agreed number of hours for F and G. Miss X said there were providers who could meet the hours and she wanted to book them directly, however, the Council’s rate of £8.90 was not sufficient.

28. The Council emailed Miss X in December 2020 and told her it would contact her soon to arrange a stage 3 virtual panel to consider her complaint. This never happened and the Council told us agreeing to offer a stage 3 panel was an error on its part.

29. From late November 2020 until March 2021 the country remained in a lockdown due to the COVID-19 pandemic and the social opportunities for F and G were limited. Provider A continued to provide support for F and G during lockdowns. The hours however remained consistently reduced, in part due to most establishments and social areas being shut.

30. In April 2021 Miss X contacted us because she said the Council had not provided a further response to her complaint or an offer of a stage 3 panel meeting. We found the Council had not provided Miss X with a stage 2 response. We told the Council to carry out a stage 2 investigation which it agreed to do.

31. At the end of April 2021 Miss X met with the Council and representatives from provider A. At this meeting Miss X told the Council that provider A had not provided anywhere close to the hours F and G were entitled to. Provider A acknowledged it was unable to meet the hours and that some of its staff were not appropriately qualified in the specialist support the Council said F and G needed. Miss X reiterated that she wanted the Council to give her direct payments at the rate of £25 an hour so she could source and use different providers to cover F and G’s hours.

32. F and G continued to miss around two thirds of the care and support each week. Records show Miss X requested the Council allow her to use direct payments at the rate of £25 an hour to pay other providers to cover the hours as no single provider was able to meet the amount of hours F and G were entitled to. Miss X sent the Council a timetable to cover F and G’s half term and summer holidays along with details of the providers. However, the Council said it would need to go to an internal panel for approval. There is no evidence the Council progressed this despite Miss X chasing it. Miss X said the providers were then booked up and she was unable to use them. The Council told Miss X it would provide her with its stage 2 complaint response by early June 2021.

33. Miss X chased the Council for a complaint response in July and August 2021. During this period F and G continued to only receive around a third of their entitled hours each week.

34. At the end of August 2021, the Council provided Miss X with its stage 2 complaint response following an investigation which was overseen by an independent person. The Council accepted its Direct Payments Policy was rigid and did not allow for flexibility in how it paid them. It accepted its standard rate of £8.90 an hour was not enough to cover the hours F and G needed. It said while £8.90 an hour was enough in most situations, the policy did not allow for flexibility in exceptional circumstances such as Miss X’s where a higher payment was needed to pay for qualified workers due to the significant needs of F and G. The Council accepted it was under a duty to meet F and G’s assessed needs from the outset.

35. In line with the recommendations from the stage 2 investigation report, the Council agreed to ensure all of F and G’s assessed needs were met by paying Miss X direct payments at a rate which allowed her to buy relevant services. It also agreed to amend its Direct Payments Policy to prevent recurrence of the faults. The Council agreed to implement the recommendations within 30 days.

36. Miss X remained unhappy and complained to us which we accepted as the Council had upheld all of Miss X’s complaints. Miss X said although the Council had now agreed to pay her direct payments at the required rate of £25 an hour, it had not made any efforts to remedy the upset, distress, time and trouble and the effects the missed provision had on F and G and her since August 2020.

37. Despite agreeing to the recommendations above in August 2021 the Council failed to put the direct payment agreement in place until January 2022. This meant F and G continued to not receive their assessed hours during this period, other than the limited number of hours from provider A.

The Council’s response to our enquiries

38. The Council accepted errors and delays in handling Miss X’s complaint and then further delays in implementing the stage 2 recommendations. It said this was initially down to staffing issues and then a misunderstanding internally that it had resolved her complaint. It accepted it did not effectively communicate with Miss X.

Conclusions

39. F and G have significant social care needs and from July 2020 onwards were entitled to a package of support both in term time and during the school holidays. The support needed to be provided by someone with specialist qualifications. The Council agreed to fund support workers for F and G using provider A. The Council paid provider A directly at a rate of £25 an hour. However, Miss X informed the Council at an early stage that provider A was unable to meet the required hours and asked it for direct payments at the same rate to enable her to source her own workers from other providers. The Council refused to allow her more than £8.90 an hour in line with its policy. Miss X raised concerns about this throughout 2020. The Council consistently failed to explain to Miss X why it would not pay her a rate of £25 an hour. As a result, Miss X was unable to pay for alternative workers which meant F and G missed out on an average of two thirds of their assessed care and support needs for 18 months. All of this was fault.

40. The Council’s stage 2 investigation accepted fault. It accepted its Direct Payments Policy was inflexible and did not allow it to increase the rates of pay based on circumstances such as Miss X’s. In essence, the Council refused to consider departing from its policy and pay Miss X a higher rate of direct payments. That was fault. As a result of Miss X’s complaint, the Council has already amended its Direct Payments Policy to prevent recurrence of similar faults in the future.

41. The Equality Act protects people from discrimination arising from disability. It says changes or adjustments should be made to enable people to receive the same services as others and ensure they are not disadvantaged. The Council’s Direct Payments Policy did not give due regard to this. F and G were unable to access support because the Council would not pay more to secure the specialist support workers they needed. The Council failed to take account of its duties under the Equality Act which is fault.

42. The Council’s complaint handling was poor, and it failed to investigate Miss X’s complaint in line with the statutory timescales. It failed to escalate Miss X’s complaint to stage 2 following the stage 1 response in February 2020. Then in November 2020 it provided a further stage 1 response rather than carry out a stage 2 investigation. Neither of the stage 1 responses answered Miss X’s specific concerns. It then told Miss X it would hold a stage 3 panel which it accepted was done in error. The Council’s first meaningful response was the stage 2 investigation in August 2021, four months after it agreed to do so and over fourteen months since Miss X initially escalated her complaint to stage 2. Despite accepting fault, it then took over four months to implement the increase in direct payments. All of this was fault.

Injustice

43. F and G have significant needs and did not receive the full amount of care and support they were entitled to between July 2020 and January 2022 because of the identified faults. COVID-19 had an impact between December 2020 and March 2021 where most social activities were shut. However, on average, F lost out on 9 hours of support each week and G, 12 hours a week. F and G are teenagers and the lack of consistent, reliable support workers caused them both distress and left them feeling isolated and frustrated without the social time they were entitled to. Had the Council investigated Miss X’s concerns earlier, and paid her the assessed rate of direct payments, it is likely F and G would have accessed all the hours they were entitled to on a more regular basis.

44. The impact on Miss X was also significant. Miss X used the time that F and G accessed their support workers as her respite and could focus on being their ‘mum’ at other times. The lost support meant Miss X had to fill the gaps by being F and G’s support worker which placed her under significant stress and impacted on her health and her own friendships and social life. Miss X also spent a significant amount of time corresponding with the Council and fighting for an adequate complaint response. The significant delay in implementing the agreed actions after it accepted fault compounded all this injustice.

45. It is not possible to recommend a remedy for F and G to make up for the opportunities and care and support they lost out on between July 2020 and January 2022. Neither can we properly quantify it. Instead, we have recommended symbolic payments to recognise the significant injustice the Council’s acknowledged faults caused F, G and Miss X during this period.

Recommendations

46. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

47. In addition to the requirements set out above, the Council has agreed to take the following action within three months of the date of this report:

• Write to Miss X and apologise and pay her £1,000 to recognise the distress, uncertainty and time and trouble caused to her when it failed to meet F and G’s assessed care and support needs between July 2020 and January 2022 and when it refused to pay Miss X a higher rate of direct payments;

• Pay Miss X £350 to recognise the uncertainty and time and trouble caused by its poor handling of her complaint under the statutory children’s complaints procedure and the delay in implementing the stage 2 recommendations;

  Pay Miss X a total of £7,200 (£200 for each child for each month of missed support) to acknowledge the impact on F and G from the lost opportunities, and support, and the distress caused when it failed to meet their assessed care and support needs between July 2020 and January 2022. Miss X should use this money for F and G’s benefit as she sees fit;

• Review its Direct Payments Policy to ensure it is compliant with its duties under the Equality Act.

Decision

48. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Miss X and her children, F and G. The Council has agreed to take the action identified in paragraph 47 to remedy that injustice.

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