The Ombudsman's final decision
Summary: Mr X complained that the Council failed to assess his family’s support needs properly when his son came out of hospital. He says it also failed to provide a suitable remedy for his complaint about this under the children’s social care complaints procedure. We find there were some flaws and delays in the assessment process that the Council has not fully recognised in its response to the complaint so far. The Council has agreed a further remedy.
The complaint
Mr X complained that the Council: failed to address the impact of the faults found in the independent investigation of his complaint about children's social care and provide a suitable remedy; failed to carry out actions agreed at the end of the complaints process; and took too long to complete the complaints process.
As a result he says he and his family have missed out on support they should have received.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended) 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) 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) The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
How I considered this complaint
I discussed the complaint with Mr X and considered the information he provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on support for children in need. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Children’s social care complaints procedure The law sets out a three-stage procedure for councils to follow when looking at complaints about children's social care services. The Council appoints an Independent Investigating Officer to investigate and an Independent Person to oversee the investigation at stage 2. If the complainant is not satisfied with the outcome they can ask for a stage 3 review by an independent panel. 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.
Statutory guidance, 'Getting the Best from Complaints', explains councils' responsibilities in more detail, including timescales at different stages of the process.
Assessment of children’s needs 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. A disabled child is a child in need. (Children Act 1989, section 17(1)(c)) The definition of a disabled child includes a child who “suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity”. (Children Act 1989, section 17(11)) When a child has been in hospital for three months or more, the appropriate health body must notify the child’s local authority when the child is discharged. The local authority must assess the child’s needs and decide whether it needs to provide services under the Children Act 1989. (Children Act 1989, section 85) Local authorities undertake assessments of the needs of the child to determine which services to provide and what action to take. Statutory guidance ‘Working Together to Safeguard Children’ (‘Working Together’) outlines an assessment framework for councils to use. Assessments should look at: the child’s developmental needs, including their health and educational needs and their family and social relationships; the parents’ or carers’ parenting capacity; and family and environmental circumstances such as family history, income, housing, social networks and access to community support.
The expectation of ‘Working Together’ is that an assessment which identifies significant needs will generally lead to the provision of services, but it not the case that there is a duty to meet every assessed need.
Assessments should be completed within 45 working days.
Where it appears to a local authority that there is a need, or if a parent carer of a disabled child in need requests it, the local authority must assess whether the parent has support needs and, if so, what those needs are. This is known as a parent carer assessment. The local authority may combine the assessment with an assessment of the needs of the disabled child. The assessment must consider: whether the parent carer has needs for support in relation to the care which they provide or intend to provide; whether the disabled child being cared for has needs for support; whether those needs could be satisfied (wholly or partly) by services which the authority may provide under section 17; and whether or not to provide those services. (Children Act 1989, section 17ZD/E) 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.
Where the council is satisfied it is necessary to provide services under section 2 of the CSDPA, they may 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.
If the Council decides it should offer services to meet needs identified in a section 17 assessment, it may offer funding to pay for those services, rather than arranging the service itself. This is known as a direct payment.
When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent.
Under the ‘Kent procedures online’: the Child in Need Plan will say how often professionals will visit the child and family, with social worker visits at least every four weeks, the Child in Need review meeting will take place within three months of the initial Child in Need meeting, further review meetings will be no less than three monthly after that, dependent on the level of concern, or every six months if open to the Disabled Children’s Team, meetings may be more frequent where there has been a significant change of circumstances.
The Council provides children’s social care services through different sections including an Early Help Team, an Adolescent and Children’s Social Work Team and a Disabled Children’s Team (DCT). To be eligible for a referral to and assessment by the DCT a child or young person must have a permanent or long-lasting diagnosed disability and be profoundly and severely impaired in a number of areas. These include mobility, personal care, learning disability, behavioural and social issues, physical health, and consciousness.
Education, Health and Care Plans A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
Councils must review an EHC Plan at least every 12 months. The council must write to the child’s parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHC Plan as it is, amend it or end it.
Parents have a right of appeal to the SEND Tribunal against a decision not to amend an EHC Plan or a decision about the special educational needs provision in the Plan.
What happened The following is an outline of the key events relevant to the investigation. It is not intended to cover everything that happened.
Children’s social care Mr and Mrs X have a young teenage son, B, who has complex mental and physical health problems. He has a diagnosis of Autistic Spectrum Disorder and experiences non-epileptic seizures. He also has an anxiety disorder which results in him experiencing severe physical pain when he becomes stressed. B has had an EHC Plan for several years. Mr and Mrs X also have a younger child, C.
B was in hospital for nearly a year and was due to be discharged in August 2019. In December 2018 the hospital wrote to the Council’s children’s social care service to say that B had been in hospital for the past three months. It explained his medical condition and referred to the Council’s duty to carry out an assessment of his needs.
In July 2019 the hospital contacted the Council again to say B was due to be discharged and to ask the Council to carry out the assessment. The Council accepts it did not pick this up as a referral and did not act on it.
In November 2019 following further contact from the hospital and Mr X, the Council confirmed it would carry out an assessment. The Council allocated the case to a social worker in the children’s social work team as it did not consider B met the criteria for a service from the DCT. At first the Council cancelled the assessment. The Council accepted it should not have done so and re-opened the case.
The social worker, SW1, carried out the assessment in January 2020. The assessment included home visits to see the family and discuss B’s needs, information from mental health professionals involved with B’s care, and his school. The assessment noted B’s physical and mental health difficulties. The report concluded B was receiving appropriate support through health and education services, his parents were meeting his needs, and there were no safeguarding concerns. So the decision was the family did not need any support from children’s social care. The Council decided to make a referral for an Occupational Therapy assessment for adaptations in the home to help manage the effect of B’s seizures. It decided to make a referral to its Early Help service to look at support for C.
Mr X made a formal complaint to the Council about the assessment in February 2020. He said the assessment contained errors and did not identify B as a disabled child despite his significant disabilities and illness, which he said amounted to discrimination. He said it meant the family was not receiving the support they needed.
In it stage 1 response the Council apologised for some failings in communications, failing to record the assessment properly and failing to provide support for C as agreed. Mr X was not happy with the response and asked to take the complaint to stage 2. In April the Council wrote to Mr X declining to progress the complaint to stage 2 as it said it had already addressed his points at stage 1 and could not add any more.
Nevertheless the Council agreed to carry out another child and family assessment, this time by a social worker from the DCT, SW2. The assessment started in April 2020 and was completed in September. The outcome was that the family did meet the threshold for social work involvement. It recommended a Child in Need Plan “to determine the appropriate support required to ensure [B] is able to thrive and meeting his developmental milestones, but also to to enable him to access the community and support his emotional wellbeing”.
A multi-agency Child in Need meeting took place in October 2020. The meeting agreed B should be supported by a Child in Need Plan. The Plan included: advice on diet and weight, the consultant psychiatrist to continue working with B, DCT to make a referral to the OT service, DCT to follow up with the young carers service to ensure C had support, DCT to review and monitor support under the Child in Need Plan and support B “accessing community resources”, with SW2 as his allocated social worker.
The review Child in Need meeting due to take place in January 2021 was cancelled.
The Council says towards the end of April Mr X explained to SW2 that B’s needs had changed. B was suffering from long COVID-19. This meant physical activities were difficult for him and he could no longer take part in PE at school. The Council says the social worker agreed to make a request for direct payments The first Child in Need review meeting took place in May 2021. The Council said the DCT now had some new commissioned services being set up. It confirmed a request for direct payments had been put to the funding panel so B could have support from a Personal Assistant (PA). The funding panel agreed a package of support of four hours in term time and eight hours non-term time for a support worker to help B develop independent living skills and give the family time with C. The Council made a referral to a support agency the following week and the direct payments started in July 2021.
Child in Need review meetings continued through 2021 and 2022, taking place every two to three months.
Education, Health and Care Plan There were some relaxations to the 12-month review timescale because of the COVID-19 pandemic. The Annual Review meeting due in February 2020 did not take place. There was a virtual Annual Review meeting in July 2020. In preparation for the meeting the SEN caseworker asked for a report from children’s social care. As the assessment started in April was not yet complete, children’s social care sent a copy of the report from the previous assessment carried out in January. This did not include any social care support, and so none was included in B’s EHC Plan.
The Council did not send the required notice to Mr and Mrs X saying whether it would be amending the EHC Plan following the review.
The next Annual Review meeting took place in May 2021. In July the social worker provided information about the package of social care support agreed. Again the Council did not send a notice saying whether it proposed to amend the EHC Plan following the review. I am not clear when social care provision was included in the EHC Plan.
Complaint When Mr X received the stage 1 response to his complaint in April 2020 he was not happy with it and asked to take the complaint to stage 2. The Council wrote to Mr X declining to progress the complaint to stage 2. It said because of COVID-19 the Council was assessing each complaint to decide what it could reasonably achieve by progressing it to the next stage. It told Mr X it would not progress his complaint to stage 2 as it had already addressed his points as far as it could.
Mr X remained unhappy and in November 2020 he complained to the Ombudsman. He said the Council had failed to carry out an effective assessment of B’s needs. Mr X said this meant B and the wider family had received no direct support since B’s discharge from the hospital in July 2019.
The Ombudsman decided the Council had failed to deal with the complaint properly. It should have considered it under the statutory children’s social care complaints procedure. The Council agreed to our recommendation to arrange a stage 2 independent investigation under the statutory procedure within one month of the decision on the complaint. It also agreed to apologise to Mr X and pay him £150 to recognise the uncertainty and time and trouble involved because of its failure to investigate the complaint under the proper procedure.
We issued our decision in mid-March 2021. The Council contacted Mr X before the agreed one-month deadline in order to arrange the investigation. At first Mr X said he did not wish to have a stage 2 investigation and wanted to go straight to stage 3. After further correspondence and discussion between Mr X, the Council and the Ombudsman, Mr X agreed a statement of complaint with the Council for the stage 2 investigation. Mr X confirmed the statement on 25 May 2021 and asked the Council to advise him when the 65-day time period for the complaint would start.
The investigation took place and concluded with the stage 2 report of in August 2021. There were 15 heads of complaint. Seven were upheld, five not upheld and three partly upheld. The complaint went to a stage 3 Review Panel in early October. By the end of the process the findings agreed by the Council included the following.
Both social work assessments were completed outside the required timescale. The January 2020 assessment was a day late. The second assessment took much longer but this was because of the social worker’s need to build up a rapport with B, which Mr X had complained had not happened with the previous assessment.
The Council failed to act on the initial referral from the hospital in July 2019.
The issue of whether the DCT criteria were unlawful and discriminated against children with mental health difficulties was outside the scope of the complaints process.
The EHC Plan was inaccurate.
There was fault in the complaint handling.
The Council offered Mr X £500 to recognise the distress caused by the failings found as well as the £150 agreed with the Ombudsman for flaws in the complaint handling. The stage 3 Review Panel suggested the Council should review whether the family would have received extra payments for B if there had not been delays in carrying out the assessments.
The Council accepted that the EHC Plan paperwork was not accurate. It apologised for failing to send a decision letter following the Annual Review meetings, which prevented Mr and Mrs X exercising their right of appeal. It said it would issue an amended EHC Plan by mid-November 2021 and a final Plan a month later.
The Council said it had reviewed whether it would have made further payments had there been no delays in the social work assessments but decided it would not.
Mr X was not satisfied. He complained to the Ombudsman because he felt the Council had not recognised the full impact of its failings.
Analysis – was there fault causing injustice?
The Council has accepted some fault but Mr X’s view is that if it had carried out a proper assessment when it should have done, the family would have received direct payments from when B came out of hospital in 2019.
Mr X also maintains that the criteria the Council use to determine eligibility for a service from the DCT are unlawful and discriminate against children with mental health difficulties. The Ombudsman cannot rule on whether the Council’s criteria are unlawful: that would be a matter for the courts. Councils may decide how to allocate cases to different parts of the social care service. We can look at whether there was any fault in the way assessments were carried out and what impact this may have had, including the effect of any delay.
The stage 2 investigation found no loss of service as a result of the delay in starting the assessment following the initial referral from the hospital. It said this was because the first child and family assessment in January 2020 did not result in a recommendation for any support services.
The assessment completed in September 2020 resulted in a Child in Need Plan, but no social care support until the Council agreed to provide direct payments in May 2021.
There were other delays in the process. The Council failed to carry out the first three-month review of the Child in Need Plan in January 2021 as it should have done. This did not take place until May. There was also a lack of social worker contact. This should have taken place at least every four weeks, even if virtually because of COVID-19 restrictions. The lack of contact and the delay in holding the review meeting is fault. From the documents I have seen, I understand the Council has accepted this.
I have considered whether, but for the delays and any other flaws in the assessments, the Council would have offered the family direct payments earlier.
B was discharged from hospital in August 2019. If the Council had dealt with the referral promptly it seems likely it would have started the assessment by September after the discussion about which was the appropriate service to conduct it. I have not seen evidence of fault in the discussion about this that took place. It was detailed and took account of medical information and the criteria for an assessment by the DCT.
I do not know what the outcome of an earlier assessment would have been, but the doubt and uncertainty about this is an injustice to the family.
As it was, the assessment carried out in January 2020 came to the conclusion there was no need for the Council to provide support services under section 17. The assessment carried out from April to September concluded the Council should provide support under a Child in Need Plan. It is not for the Ombudsman to question the outcome of an assessment if it has been carried out properly. We cannot decide what services are appropriate to support a family. However I have compared the two assessments and looked at the reasons given for the different conclusions reached.
In both cases case the evidence shows social workers visited the family to discuss their needs. The Council obtained appropriate information from relevant professionals involved with the family and considered it. Both assessments looked at a similar range of factors as set out in the statutory guidance. They noted B was doing well at school and engaging in a number of sports activities. They both identified B as a disabled child and recognised the support he was receiving from health and education services and Mr and Mrs X. Both also recognised the impact caring for B was having on the whole family, looking at both the parents and his sibling, and the lack of respite for Mr and Mrs X. The two assessments gathered and considered very similar information.
The January assessment concluded that because B’s needs were being met by other services and his parents, there was no need to provide social care support. By contrast, the September assessment recommended that despite receiving this support, B should be placed on a Child in Need Plan to look at further support needed to help him access the community and support his emotional wellbeing.
The September assessment had a more detailed description of how B’s complex and variable health condition affects him. Otherwise it is difficult to see what additional factors the second assessment took into account to reach the different conclusions. Based on the records I have seen the main difference appears to be that the assessment by SW1 from the general social work team decided B did not “meet safeguarding threshold criteria for children’s social care team”. This was how the second assessment by SW2 from the DCT summarised the conclusion of the first assessment in the reasons why the second assessment was being undertaken. The report went on to say Mr and Mrs X wished B to have an assessment by the DCT as they felt the Council had not recognised B’s needs as having a significant impact on his day-to-day life. That was why the Council was carrying out the second assessment to consider B’s needs and eligibility for support.
While the Ombudsman would not criticise the Council for having eligibility criteria for allocating case to different social work teams, this should not affect the analysis of the information obtained through the assessment. In this case the evidence indicates it was a focus on safeguarding rather than potential support needs for a disabled child and their carer that resulted in a different analysis and conclusion.
This can be seen most clearly in the way the first assessment dealt with Mr and Mrs X’s needs as parent carers of a disabled child. It identified their needs and had a section to consider them. It recognised that B’s difficulties had “some significant impact on this entire family especially his parents as he demands a lot of their time and attention”. It noted Mr and Mrs X had had to give up other commitments to care for B and could only have any respite when he was at school. But it did not reach any conclusion about whether the Council should offer any support to help meet their needs under section 17. In my view this is fault.
On balance, based on the evidence I have seen so far, I consider it more likely than not that if the first assessment in January 2020, which in itself was delayed from September 2019, had had a similar focus to the second assessment it would have resulted in a Child in Need Plan. But even that conclusion is not sufficient to be able to say on balance it is likely the Council would have offered direct payments then.
The Child in Need Plan drawn up in September 2020 referred to a need to decide on the appropriate support needed to enable B to “access the community and support his emotional wellbeing”. The Plan did not say how this would be done and did not include any offer of PA hours or direct payments to allow the family to arrange such support.
In response to our enquiries the Council has said the offer of direct payments came about because of a change of circumstances. It says when B was referred to the DCT in April 2020 at the start of the COVID-19 pandemic Mr and Mrs X were clear they were limiting their contact with others and would not want B to be going out with a PA because of the risks this would pose. It says they preferred to focus on clubs and activities B could access. This was also B’s choice.
The Council says during the Child in Need meeting in October 2020 Mr and Mrs X described various sports and physical activities B was taking part in during the week and at weekends. It says it therefore considered at that point he had no need for a PA. Then towards the end of April 2021 the Council says Mr X explained to the social worker that B’s needs had changed. He was no longer participating in PE at school and physical activities were difficult for him as he was suffering from long COVID-19. At that point the Council agreed to look into direct payments and a package of support was agreed.
Mr X says the Council did not ever tell him that the reason it did not offer direct payments following the Child in Need meeting in October 2020 was because B was already engaging in activities. He says the review meeting in May 2021 only came about because he contacted the social worker to ask about it as there had been no meeting for over six months.
Based on the records I have seen so far, I see no evidence that the Council explained to Mr and Mrs X why it did not include a support package with direct payments in the first Child in Need Plan. There is evidence that Mr and Mrs X asked what support could be provided at the October meeting. If that was the decision the Council made, I consider it was at fault in failing to tell Mr and Mrs X. However I have also not seen any evidence that the Council looked into what sort of support it would consider appropriate to help B access community activities, which was one of the stated aims of the Child in Need Plan.
I do not know for certain how the contact with SW2 at the end of April came about. However, given that the Council has already accepted there was a delay in holding the review Child in Need meeting and in contacting the family, it seems more likely it was Mr X who initiated the contact, as he says. The Council’s record of the telephone call refers to the date of the Child in Need meeting being ‘confirmed’ for May. This indicates that it was a response to an enquiry from Mr X. So I find that the Council was at fault in failing to consider whether any further support was needed under the Child in Need Plan until late April 2021.
Whether considering this matter would have produced a package of support earlier depends on whether there is evidence it came about as a result of a change of circumstances, with B being unable to participate in activities outside the home as before.
The record of the January 2020 assessment shows Mr and Mrs X described various activities B was involved in which benefited his physical and mental health at school and out of school. In April 2020 the Council says they made it clear they did not need help from the Council to take B out to any other activities because of the risks associated with COVID-19. But in August during a home visit as part of the second assessment, B told the social worker he was disappointed he had not been able to take part in several activities he had enjoyed because of the lockdown. The assessment report noted this and said these activities supported B to regulate his anxieties.
So if lack of access to outside activities was the reason for the decision to offer direct payments in May 2021, I see no reason why the Council should not have considered this earlier, following the October 2020 Child in Need meeting. In my view then, the lack of contact from the social worker and the failure to hold the first review meeting in time led to a delay in offering direct payments. I recommend a remedy for this below.
Education Health and Care Plan Although the Council accepted the EHC Plan was not accurate, this is not a matter the Ombudsman can investigate. This is because Mr and Mrs X have a right of appeal against content of an EHC Plan and the Ombudsman cannot decide what provision is suitable for a child with special educational needs and disabilities.
The Council has also accepted it was at fault in failing to notify Mr and Mrs X of decision not to amend EHC Plan following review. This deprived them of their right of appeal.
Part of Mr X’s complaint to the Ombudsman was that the Council failed to issue the draft and final EHC Plans by the dates promised at the end of the complaints process. The Council has explained that on considering Mr X’s response to the draft Plan it obtained further professional reports. Subsequently there has been a new decision to carry out a re-assessment of B’s needs. These later events are beyond the scope of this investigation.
Complaint handling I have not seen evidence of further delays as a result of any fault by the Council since the Council agreed to the Ombudsman previous recommendation to arrange a stage 2 investigation. So I consider the offer of a payment of £150 made in connection with the previous complaint is a suitable remedy and I do not propose any additional remedy for this part of the complaint.
Agreed action
The Council has already offered to pay Mr and Mrs X £500 to recognise the distress caused by the effects of the faults found, including the delay in the assessments. I consider this a reasonable amount for distress. This would include recognition of the doubt and uncertainty about what an earlier assessment might have produced if the Council had acted promptly on the referral from the hospital.
The Council should repeat its offer of £150 to recognise the effect of poor complaint handling found in the previous complaint, to give Mr X a further opportunity to take it up.
In addition, the Council has agreed to take the following action within one month of the final decision on this complaint: apologise to Mr and Mrs X for the further faults I have identified; backdate the direct payments awarded in May 2021 to October 2020; pay £250 to recognise the loss of opportunity to appeal to the SEND Tribunal; pay Mr X £250 to recognise his time and trouble in pursuing his further complaint to the Ombudsman.
Final decision
I have found fault by the Council causing injustice to Mr X and his family. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.
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.
Investigator's decision on behalf of the Ombudsman