Summary: there was some fault by the Council in relation to the matters complained about in the form of a failure to update written care plans and delays in the complaints handling process. The Council will take the agreed action to recognise the injustice these caused and to ensure that such faults do not recur

The complaint

1. The complainant, whom I shall refer as Ms B, complains the Council’s children’s services team failed to properly support her son, X, who is disabled or her as his carer in that it:
1. failed to assess or provide a care plan for X between 2015 and 2019;
2. provided “almost no care” and ignored Ms B’s requests for support even though there was money building up in X’s direct payments account and eventually around £21,000 in it;
3. failed to provide a Personal Assistant for X;
4. the notes of Child in Need meetings were inaccurate and delayed;
5. the social worker failed to provide support following an incident in the school in 2018;
6. failed to reimburse Ms B for a holiday taken in 2017; and
7. delayed handling of Ms B’s complaint.
2. Ms B’s son is now an adult having turned 18 in late 2019. So, from that date, I understand from the records provided to date, responsibility for providing care to X moved to the health service. Ms B’s complaint to us relates to the actions of the Council. For clarity I am not considering any actions of the health provider.
3. The injustice Ms B claims is that the lack of support resulted in the deterioration of her son’s behaviour. This meant Ms B and the rest of the family were put under significant stress as they ended up providing support to X. Ms B also says she has been caused financial difficulty as a result of the Council not paying the carers.
4. The outcome Ms B asked us to achieve was broadly the payment of £21,000 which she says was the unused sum of direct payments that had build up in X’s account, payment to cover school holidays in 2017 and compensation for the family.

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The Ombudsman’s role and powers

5. 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 Independent Investigator 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 the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
6. 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)
7. 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

8. I discussed the complaint with Ms B and considered the information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision. I have considered parts of the complaint from 2017. I provide reasons for this in the section of this statement in which I address whether there was fault in the Council’s actions.
9. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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

What should have happened

11. 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.
12. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond. The guidance says that where a council does not provide a response in 20 days the complainant is entitled to ask for the matter to be considered at stage 2 and that the Council should inform the complainant of this right.
13. 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 a maximum of 65 working days to complete stage two of the process from the date of request.
14. 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.
15. Section 17 of the Children Act 1989 requires councils to safeguard and promote the welfare of ‘children in need’ (CIN) 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. If a child in need assessment determines that a child needs service a child in need plan is drawn up. This includes details of how neds will be met. Such plans are reviewed regularly.
16. Parents/carers of disabled children can ask for a direct payment (DP) to meet the needs of the child. Persons receiving DPs must agree to DPs and keep and submit accounts.
17. Personal assistants (PAs) help disabled people to perform daily activities.
18. Councils may use managed accounts where someone else (other than the service user or parent for example) provides support for people to manage their direct payments. Solihull Council uses an agency to provide support for people to employ staff, pay staff and manage direct payment accounts.
19. A council may require the payment or part of the payment to be repaid where they are satisfied that the direct payment or part of the payment has not been used to secure the provision of the service to which it relates. (The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009)  

Background

20. Ms B’s complaint relates to her son, whom I shall refer to as X. X is now 20 years old but this complaint relates to services provided to him when he was under 18 and in receipt of services from the Council’s children’s services team. X is disabled and is described as having complex needs including severe learning disabilities, an autistic spectrum disorder and challenging behaviours including, for example, head banging. He is non-verbal and has mental health problems including anxiety.
21. The Council provided X with services from 2015 and this included a package of support funded by direct payments. This took the form of overnight respite care. In 2016 the Council required Ms B to have a managed account for X’s direct payments due to concerns about the handling of these in the past.

Complaint made in 2017

22. Ms B first complained to the Council about matters that seem to be related to the issues in this complaint in 2017. This included a complaint about a reduction in care hours from 16 to 8 hours a week and a decision to move to a managed account without proper consultation. A series of mediation meetings are reported to have taken place between May and September 2018 when that complaint was said by the Council to have been completed and resolved.

Further complaint in 2019

23. Ms B complained again to the Council in July 2019. The Council says one of its officers spoke to her about her complaint several times between July and September. However, the Council says the nature of its recording systems around complaints mean these records would be “very difficult to access” and has not provided them. The Council wrote to Ms B in September to tell her that matters already addressed in the complaint in 2017 and followed by mediation could not be re-submitted as complaints in 2019. It also told her which parts of her complaint could be considered because they raised new issues. The Council asked her to provide further information about these new issues.
24. The Council went on to investigate complaints that were not covered in the earlier complaint. A stage 1 response was provided in early December 2019 following an extension of time to enable the stage 1 investigator to consider additional evidence provided by Ms B. The outcome of stage 1 was the offer of a payment of £500 to recognise her distress and time and trouble caused.
25. In December 2019 Ms B asked for the matter to be considered at stage 2 of the statutory procedure. She confirmed this request in late January 2020 by letter and investigation took place during much of the rest of 2020.
26. In February the Council asked Ms B to sign a “Data Protection Statement”. It then asked her if she wanted an interpreter when she met with the stage 2 investigators. This meeting was arranged for March 2020 but did not go ahead when the Covid-19 pandemic lockdown started. Ms B confirmed in March that she was happy to proceed on the basis of her written complaint.
27. That stage 2 report has formed the basis for much of my understanding of the complaint. It identified and investigated the following complaints that are relevant to the complaint Ms B has now made to this office:
1. A statement about the managed direct payments account issued to Ms B in February 2019 stated that around £21,000 was sitting in that account that Ms B believed had not been used and which she believed she should be given as she said she had received only 3 nights respite care a month since 2015/2016;
2. The Council had failed to provide her with support with X after he stopped attending school in October 2018 even though Ms B asked for this;
3. A child in need plan had not been devised for X, even though he was considered a child in need, nor did he have a care plan; and
4. Ms B had been told the wrong hourly pay rate for carers during the mediation of the earlier complaint so when Ms B found carers she found they would be paid a lower rate.
28. The stage 2 findings on these complaints were detailed in the investigator’s report dated July 2020. The investigator:
• recommended that complaint 1 should be partially upheld. Specifically, he made no finding on Ms B’s assertion that the managed account held £21,000 of unused direct payments for X. The investigator stated that the social work manager said that when X’s direct payment account was ended when he reached 18 in late 2019 it still had around £2000 in it and because this was unused it was taken back as would be the usual process. The team manager is noted to have accepted that the account should have been monitored regularly every 8 weeks to check whether direct payment monies had been used and recoup anything that had not been used and this would have indicated it there was a problem. The investigator noted that the account was a managed account as Ms B had failed to sign a direct payments agreement and also a previous decision regarding previous “irregularities” in Ms B’s handling of direct payments meant the account was a managed one. He also noted that the complaint about unused monies was not included in the earlier complaint made in 2017 (and presumably it could have been and could have been addressed then);
• partially upheld the complaint about the poor level of provision to Ms B (she said only 3 nights of respite a month since 2015/16) – the investigator stated that whilst there was evidence of regular support being made and help to find PAs, the social worker did not provide regular copies of a care plan. This is case even though CIN meetings were held as the social worker failed to update the care plan after these meetings and to give them to Ms B. The investigator also noted however that the social worker had tried to help and support Ms B by seeing her regularly and making referrals to agencies for support with F. However Ms B had not always been open to these offers and so some support was not put in place when it could have been as a result of Ms B’s refusal to follow up or agree to what was put forward. The investigator found that the social worker should have checked on the balance in the direct payments managed account regularly to check to see if monies were being spent. However, he also said he had seen no evidence that the balance in the account reached £21,000 and pointed out that it was unlikely this would have been the case as the policy states that unused monies are clawed back regularly;
• did not uphold the complaint about the Council failing to provide support to Ms B in her care of X after he stopped attending school in October 2018. In brief the investigator found that overnight respite care was increased from 3 to 4 nights a month, Ms B repeatedly refused to work with an agency that could have supported X, it was Ms B’s decision to remove X from his school and she refused home schooling offered, she wanted her daughter’s friends to provide and be paid for providing care to X (which is not permitted under the DPs scheme) and the Council agreed to allow Ms B to use direct payments on a family holiday abroad;
• did not uphold the complaint that Ms B had asked for help but was not provided with any while the DPs were building up in the account. Ms B wanted the £21,000 paid to her then as she considered it was the family’s money. The investigator reiterated a finding at stage 1 of the complaints procedure that the monies for a PA were for that purpose and were not transferable. He also found evidence that the social worker had responded to Ms B’s request for help in December 2018 stating she would need to visit the family at home to consider this and that this home visit took place the same month, the increase in overnight respite was made after the school place ended and the Council tried to support Ms B to find a PA to make provision using the direct payments. The social work assessment completed in late November 2018 after X had left the school placement identified X needed 12 hours support a week, 8 hours personal care support and the additional overnight respite;
• stated in his report that at a meeting in May 2017 the Council confirmed the PA’s payment rate was £11.70 per hour and £4 more than this if using either of two particular named providers; and
• partially upheld a complaint about the failure to provide CIN plans stating there was evidence in the social work records of assessments being completed, support being offered in terms of care providers and to find PAs, also that CIN meetings had taken place but that a copy of a plan detailing the support package in place after the CIN meetings was not added to the records.
29. The investigator recommended that the Council apologise for the failure to provide a written care plan and for failing to respond to all Ms B’s emails. Also that the Council should ensure that CIN meetings were properly recorded on file and that plans were updated and recorded every 6 weeks, overseen by a manager every three months and that checks were made with the finance team to check whether DPs were being used.
30. A senior officer in the children’s team adjudicated on the investigator’s stage 2 findings and recommendations in late August. She agreed with the investigator’s findings. She re-offered a payment of £500 to recognise the time, trouble and distress Ms B had been caused. She did not agree that the £21,000 should be paid to Ms B because there was no justification for this and no evidence that such a sum had accumulated in the direct payment account. She apologised for the poor communication and the failure to provide the care plan documentation and said that the CIN reviews were being recorded and updated every 6 weeks and that these were also reviewed in meetings between social workers and their managers. She also said that direct payment accounts were reviewed every three months by the social work team manager and the finance officer to ensure they were being used appropriately and that any problems could be addressed by the social worker with the family involved. She said that any unspent funds were recouped by the Council after 8 weeks.
31. Ms B was originally told that she would need to request any escalation to stage 3 of the complaints process by late October 2020. Ms B asked for this date to be extended on a number of occasions and eventually submitted a request in mid-December 2020. A later request as to her availability for a panel meeting was chased up in February when Ms B asked for the panel to be arranged for early March. The Council was unable to arrange a panel for Ms B’s preferred date in early March but did arrange one for late March.
32. The stage 3 review panel took place in late March 2021. The notes of that meeting state that Ms B was unhappy with the findings of the stage 2 investigation because:
• she did not consider the investigator at stage 2 had properly considered all the evidence; and
• X had missed out on services and she wanted the direct payments that had accrued as a result of these services having not been provided, paid to the family.
33. The outcomes she wanted to achieve included the £21,000 to be paid to her, financial compensation to recognise the deterioration in her health as a result of her having to provide too much of X’s care and financial compensation to recognise the psychological impact of the inadequate support on Ms B’s other children.
34. The review meeting listened to both Ms B and the stage 2 investigator’s views and comments. The panel then considered the evidence and reached a decision.
35. The clerk to the review panel wrote to Ms B about three weeks later with details of the review panel’s decision. The panel broadly agreed with the stage 2 findings on the complaint. It did not agree that Ms B should be paid the £21,000 or be paid any other compensation.
36. The Director of Children’s Services completed her adjudication of the stage 3 findings in late April 2021. She accepted the panel’s findings but stated that although a CIN plan was not put together, Ms B was advised of the outcome of the assessment and that the associated level of funding to meet that need was paid in to a managed account for X. she also said that his support was reviewed regularly.
37. Ms B complained to this office in May 2021.

Was the Council at fault and did this cause injustice?

38. I consider the Council’s consideration of the children’s statutory complaints procedure was thorough and properly addressed the complaints made. The stage 2 investigator states that she read the relevant case files, documents provided by Ms B and that she interviewed a number of council officers including the social work team manager, the assistant team manager and the head of the relevant service.
39. I accept the findings of that investigation have been reached as a result of careful and thorough consideration under the three stages of the statutory procedure. As I see no evidence that the investigation was flawed I have not therefore reinvestigated the matter.

Complaint a)

40. As Ms B complained in October 2017 about matters that dated back to 2016 I consider it would have been reasonable for Ms B to have included the issues about the failure to assess or provide a care plan for the period 2015 to 2017 in that earlier complaint. We do not ordinarily consider complaints that a complainant has been aware of for more than 12 months. As it is clear that Ms B was aware of this issue considerably more than 12 months before she complained to this office I see no reason to consider the period from 2015 to 2017 now. I will however consider this complaint for the period from October 2017 to 2019 as this could not have been included in that earlier complaint and I recognise that Ms B could not have complained to this office following the 2019 complaint until the conclusion of stage 3 of the complaints procedure in 2021. The investigator at stage 2 of the complaints procedure upheld Ms B’s complaint that the social worker did not provide copies of updated care plans following CIN meetings. The complaint investigated by the Council did also include a complaint about the failure to assess but found there was evidence of assessments and I would consider that given X was receiving services as a child in need it would seem that some kind of assessment would have taken place. So, the issue appears to have been more related to the failure to properly update the care plan. I consider this failure to update the care plan amounts to fault and that the lack of this written record was also fault and this caused injustice in the form of uncertainty of what would definitely be included in the budget for X’s care.

Complaint b)

41. The stage 2 investigator agreed that X had received only around 3 nights respite care a month for some time up to the date of her investigation in 2020. However, she also found that the social worker had tried to assist Ms B with identifying services that could provide further support but Ms B had not wanted to pursue these. The investigator found there was no evidence that that £21,000 had built up in the direct payments account. The Council’s policy appears to be that it will not allow large amounts to build up in accounts as it claws back unspent monies. Ms B has been unable to provide evidence of this amount in the account.
42. On balance there are no grounds for me to consider there was fault by the Council in relation to this complaint.

Complaint c)

43. The stage 2 investigation found that the social worker had put forward agencies who could help Ms B identify a PA for X. The investigator noted that the social worker had tried to help and support Ms B by seeing her regularly and making referrals to agencies for support with F. However Ms B had not always been open to these offers and so some support was not put in place when it could have been as a result of Ms B’s refusal to follow up or agree to what was put forward. There are no grounds for me to disagree with the Council’s finding son this part of the complaint.

Complaint d)

44. The Council accepted that the notes of Child in Need meetings were inaccurate because they were not updated when they should have been. I accept this finding.

Complaint e)

45. The stage 2 investigator found that following the termination of the school placement in 2018 funding for overnight respite care was increased. The investigator also found that at the time Ms B wanted her daughter’s friends to provide additional care to X but that this was not allowed under the published direct payments scheme. Instead she noted that Ms B had been offered help to find a PA for X but did not pursue the options put forward. There are therefore no grounds for me to conclude that the Council failed to provide additional help or support following the end of X’s school placement in 2018.

Complaint f)

46. As this complaint relates to matters in 2017 it seems reasonable to conclude that Ms B could have complained about it when she made her complaint in 2017. As this is the case there are no grounds for me to consider a complaint about this now. In addition it was not part of the complaint considered by the Council from 2019.

Complaint g)

47. Ms B first complained in July 2019 though the clarification of what it would investigate was not completed seemingly until October 2019. It provided a response at stage 1 in December after agreeing an extension with Ms B as she provided more evidence to take into account at that stage. There was a slight delay from the time the complaint was agreed to the issuing of a stage 1 response as the timescale at that point is a maximum of 20 days and the response took around two months. Whilst I recognise the need for a longer period due to the additional evidence Ms B provided, the statutory requirement is for the response to be provided in 20 days or the offer of escalation to stage 2. The Council says however that it wrote to Ms B to advise that it needed additional time to provide a response at stage 1 because she had provided additional information several times that it then provided the response within this further timescale. The Council says Ms B did not disagree with this. The Council also says that it provided MsB with details of its procedure for dealing with complaints and that this advised parents they can request escalation to stage 2 if 20 days have passed and a stage 1 response has not been provided. As it appears Ms B accepted the Council’s request for additional time and did not request escalation to stage 2 at that time there are no grounds for me to find fault in the handling of stage 1.
48. At stage 2 the time for a response is a maximum of 65 working days. In this case it took the Council from December 2019, when Ms B asked for the matter to be moved to a stage 2 until late August 2020 when the adjudication letter was sent to Ms B. The entire period was clearly significantly longer than 65 working days. This amounts to fault. There was some unavoidable delay around the time of the March 2020 Covid-19 lockdown but other delays were avoidable and amount to fault.
49. Ms B asked for a review panel at stage 3 in mid-December 2020 and the panel took place in late March 2021 with the adjudication being issued in late April 2021. This is outside the required timescales but at least some of this is due to Ms B not providing a date she could attend and some issues around who could attend with her. On balance I do not consider there was avoidable delay at stage 3 of the procedure.
50. The delays identified in the handling of Ms B’s complaint caused her injustice in the form of avoidable frustration and avoidable time and trouble.

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Agreed action

51. Within one month of the final decision on this complaint the Council will:
• apologise to Ms B for identified fault;
• make a payment of £250 to recognise the injustice in the form of uncertainty caused by the failure to properly update written care plans; and
• pay Ms B an additional £500 to recognise the injustice caused by the delayed handling of the complaint.
52. To ensure that the delays in the statutory complaint handling identified in this complaint do not occur in the handling of future complaint the Council will, within three months of the date of the final decision on this complaint, provide evidence that it will ensure that it has a process in place which ensures that statutory timescales are met at stage 2 of the complaints procedure.
53. In addition the Council will also, within three months of the date of the final decision, provide us with evidence that social work staff are reminded of the need to update care plans if necessary following review meetings or other changes.
54. There are no grounds for me to ask the Council to provide the remedy Ms B has suggested given the findings I have reached.

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Final decision

55. There was some fault by the Council in relation to the matters complained about in the form of a failure to update written care plans and delays in the complaints handling process. The Council will take the action recommended to recognise the injustice these caused and to ensure that such faults do not recur in future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman