Summary: Mrs X complained the Council refused to provide Direct Payments to pay for wrap around care for her son who could not attend after school provision in the community due to his complex needs. As a result Mrs X has had to privately employ a personal assistant to care for her son. We have ended our investigation as we would not add anything significant to the investigation which has already been carried out under the statutory procedure for complaints about children’s services.

The complaint

1. The complainant, Mrs X complained the Council refused to provide direct payments to pay for wrap around care for her son who could not attend after school provision in the community due to his complex needs.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. As part of the investigation, I have considered the documents provided by Mrs X and the Council.
5. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Statutory complaints procedure

6. 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. We also published practitioner guidance on the procedures, setting out our expectations.
7. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
8. 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 investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
9. Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
10. The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days where required.
11. 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 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.
12. 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.

What happened here

13. Mrs X’s son, Y has complex needs. Y has an Education, Health, and Care (EHC) Plan and has attended a special school since September 2022, where he receives one to one support.
14. In March 2022, in anticipation of Y starting at the special school, Mrs X contacted the Council’s Children with Disabilities team to ask for support with after school care. The Council completed an assessment and determined Y did not have an identified need for support at that stage. It advised Mrs X to reapproach the Council to update the assessment when Y’s place at school was confirmed.
15. When Mrs X reapproached the Council in the summer of 2022 the Council initially refused to assess her request, and then advised it would be unable to help and Mrs X would need to self- fund the after school care.
16. Mrs X made a formal complaint in August 2022. Mrs X said when she first approached the Council she was led to believe it agreed Y would need direct payments for 10 hours support each week once he started school. She was therefore shocked when the Council then advised it would be unable to help. Mrs X said she was told there was a national shortage of direct payment workers and care agencies staff who could provide support, particularly around the times she needed.
17. Mrs X also complained the Council had advised them to consider flexible working hours so that they could meet Y’s after school care themselves and continue working. And to explore childcare through extended family and local services. Mrs X told the Council these were not viable options.
18. In addition Mrs X disputed the Council’s decision that their requirement for support was not related to Y’s needs. Mrs X asserted that if Y did not have additional needs he would attend the same school as his sibling which would eliminate the issue. She asked the Council to reconsider its decision and support her in finding a solution.
19. The Council’s response acknowledged Mrs X was of the view the Council would be able to support her family. It confirmed Mrs X had discussed with a social worker the type of support she would need and the hours she would require. But noted the social worker said they did not tell Mrs X it would be achievable by direct payment or confirm childcare would be provided by the Council. The Council said there was no evidence to suggest a commitment or firm decision was made in relation to supporting Mrs X’s family’s needs.
20. The Council also confirmed it did not currently have a document relating to the use of direct payments, but this was being reviewed. It said direct payments were used in Worcestershire to:
• Support with respite for parents and carers. For example, in family based short break care, residential short break care and holiday support;
• Support a child with additional needs with their social and emotional development;
• Provide personal care in a child’s own home where the parent or carer is unable to meet the child’s basic care needs.
21. In addition the Council said the direct payment must link to achieving an outcome for the child in need.
22. Mrs X was not satisfied with the Council’s response and asked for her complaint to be considered further. Mrs X’s complaint was then investigated as stage 2 and stage three of the statutory complaints process.
23. At stage two the IO did not uphold Mrs X’s complaint. They noted they had been able to identify policy documents and supporting information via an internet search engine, regarding direct payments and assessments of need. The IO found no evidence the Council’s decision not to authorise direct payments was discriminatory to Mrs X’s situation. They were satisfied the Council was able to example and explain why it had reached the decision that the need was for universal services relating to childcare.
24. The IO recommended the Council:
• Re-engage with Mrs X and provide support identifying a childcare placement for Y;
• Should an acceptable resource be identified the Council should ensure the placement has the necessary training and skills to meet Y’s needs;
• Should any additional costs be charged, over and above universal service. The Council should complete a further Assessment of Needs to establish whether it can support the funding of any additional costs.
25. The Council accepted the IO’s findings and recommendations. However Mrs X disputed them. She maintained their needs were not a universal childcare need and that in many other parts of the country after school care could be arranged with direct payments.
26. The stage three review panel considered Mrs X’s complaint in late June 2023. Mrs X told the panel that at the last review the Council had offered help to support her in finding an independent personal assistant who the family now paid for privately.
27. The panel concluded the stage two investigation had been properly undertaken and agreed with the IO’s findings. In addition the panel recommended the Council review its current policy content regarding direct payments and consider if clarification is required. And whether it would want to publish criteria of what direct payments can and cannot be used for.
28. The panel also recommended the Council undertake an assessment of Y’s total needs, including any need for after school care and respite.
29. The Council accepted the review panel’s recommendation regarding information around direct payments. It confirmed a full review of its policies, processes and information resources around direct payments would take place from September 2023.
30. The Council also completed a further assessment of Y’s needs in October 2023. This recommended requesting funding for a short break service of four hours a week. It also noted Mrs X already funds after school care, so this is not an unmet need.
31. Mrs X is unhappy with the outcome of the assessment and has asked the Ombudsman to investigate her complaint. Mrs X says the cost of after school care for Y is significantly more expensive than for his sibling who can access after school care in the community. She would like the Council to allow direct payments to be used for wrap around care for children with complex needs who cannot access other suitable wrap around care. This support is available in some other counties, but not in Worcestershire, and Mrs X feels her family is being discriminated against.

Analysis

32. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough, and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
33. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.
34. There is no indication of fault in the way Mrs X’s complaint was considered. Mrs X disagrees with the findings of the investigation, but they are detailed and reasoned. The IO acknowledged the use of direct payments was not consistent throughout the country and there appeared to be an element of ‘postcode lottery’.
35. Although neither the IO nor the review panel upheld Mrs X’s complaint, both made recommendations, which the Council accepted and acted on. That being the case there are no grounds for the Ombudsman to intervene.

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Final decision

36. We have ended our investigation on the basis we would not add anything significant to the investigation which has already been carried out under the statutory procedure for complaints about children's services.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman