The Ombudsman's final decision
Summary: Mrs X complained that an investigation under the statutory complaints process for children’s services had failed to adequately remedy her complaint. We found the investigation had not provided a sufficient remedy for Mrs X’s injustice, to reflect the lack of service provided to support her son and resulting distress. The Council accepted our findings and agreed action detailed at the end of this statement.
The complaint
I have called the complainant ‘Mrs X’. She complained to the Ombudsman after first pursuing a complaint through the statutory complaint procedure for children’s services. Having completed that procedure, Mrs X said it had failed to provide a satisfactory remedy for her complaint. She said the complaint investigation: failed to sufficiently consider the consequences of her son (‘Y’) not receiving adequate support with social care needs as a child/young person; failed to adequately consider the consequences of the Council not arranging sooner for her to receive direct payments to help meet her son’s needs; did not find that she had been asking for Y to have a residential placement from around August 2018 onwards even though she provided evidence in support of this statement; did not recognise that children’s services had failed to adequately support her because she has a disability; did not adequately recognise the distress and trauma she experienced because of the Council’s actions, especially around its decision to initiate enquiries under Section 47 of the Children’s Act 1989 which led Mrs X to fear her two younger children may be taken into care.
Mrs X says that because of these faults she had not received a satisfactory offer of a financial remedy from the Council in recognition of the consequence of the poor service Y 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 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)
How I considered this complaint
Before issuing this decision statement I considered: Mrs X’s written complaint to the Ombudsman and any supporting information she provided including that gathered in a telephone conversation and provided by email; information provided by the Council in reply to our enquiries; any relevant law or Government guidance referred to in the text below; any relevant guidance published by this office referred to in the text below.
Under an 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 in advance of any publication on our website.
I gave both Mrs X and the Council opportunity to comment on a draft of this decision statement and provide any further evidence considered relevant to the investigation. I took account of any comments received in reply before finalising the content of this statement.
What I found
The children’s services complaint procedure I began by reading through the background papers forming Mrs X’s complaint. These comprised her complaint as it was investigated through the statutory complaint procedure for children’s services.
This is a three-stage procedure. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
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.
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.
If a council has investigated something under the statutory children’s complaint procedure, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we can look at whether a council properly considered the findings and recommendations of the independent investigation.
Mrs X’s complaint I considered the most important document in the background papers was the report prepared by the Investigating Officer at stage two of the procedure described above. It gave background information about Mrs X and Y. That Y was a young person diagnosed with autism some years previously. Associated with his diagnosis, Y had an eating disorder, suffered social anxiety meaning he rarely left his room and had anger issues. He lived with Mrs X, her partner and two younger siblings.
The report covered the period from summer 2018 to around May 2019. Shortly after that date, Y turned 18 and his case transferred to adult care services. The report noted that in summer 2018 the family were in crisis. In particular, Mrs X, who has autism, was struggling to meet Y’s needs and the impact of his behaviours. She experienced a mental health crisis. In August 2018 the Council had begun enquiries under Section 47 of the Children’s Act 1989 which considers if a child or children are at risk of ‘significant harm’. The Council concluded the threshold of ‘significant harm’ was not met but it provided services to Y under Section 17 of the Act as a ‘child in need’.
That support consisted of the Council buying in eight hours a week of support for Y from a care agency. The agency helped Y in travelling to and from a recreational activity some miles from the family home where he took part in activity he enjoyed and had social contact with others. In December 2018 the Council then cut that support from eight hours to two hours a week. In May 2019 the Council agreed that it should support Y by making a direct payment to Mrs X enabling her to purchase care direct. This was to buy seven hours a week care for Y.
The report broke down Mrs X’s complaint into 15 parts, with the over-riding theme being the Council had failed to adequately support Y with his social care needs with consequent impacts on the family. The report upheld complaints the Council: should have undertaken care assessments of Y’s needs before July and August 2018. Especially after a referral in June 2018 had reported the difficulties the family was experiencing; that those assessments were not sufficiently rigorous or holistic; that there was no sign the Council had analyzed information it received from CAMHS (Child and Adolescent Mental Health Services – an NHS service) that Y would benefit from a residential placement; that those assessments had not been sufficiently discussed or shared with Mrs X; had failed to explain to Mrs X the Section 47 enquiry process; had failed to properly define what respite care Y needed. Because of the poor assessments the report found it was not possible to say whether the care the Council arranged for Y was enough to meet his needs; did not engage sufficiently with ‘child in need’ meetings designed to monitor Y’s progress against key goals. It found involvement at these meetings was from family support workers and not social workers; did not provide adequate reasons or explanation for why it had cut Y’s social care support to two hours a week in December 2018. It failed to risk assess whether Y could travel independently, or with other support, to the recreational activity he had been attending. It also wrongly referred to this reduced support as being a cut to ‘direct payments’. The Council had not provided Mrs X with direct payments at that time, although these had been requested; had rushed transition planning for Y as he approached his eighteenth birthday; had delayed in answering Mrs X’s complaint at stage one of the complaint procedure.
The report did not uphold complaints that the Council: should have referred Y’s case to its children with disabilities team rather than its child in need service; failed to hold regular Child in Need meetings; had not responded to Mrs X’s request that Y attend a residential placement. The report identified when CAMHS had made this suggestion but said it could not find evidence that Mrs X had also requested this; had arranged care through an unsuitable care agency.
The report recommended the Council: apologise to Mrs X; review its procedures around direct payments with a view to making the process easier for staff and quicker; review its procedure for when a child would be referred to the children with disabilities team – as a matter of best practice rather than because of any failings found in this case; remind its managers on the importance of completing stage one investigations in a timely manner.
The report also commented the Council may be “minded” to consider backdating direct payments to Mrs X. The report suggested if it did this the Council could take account of money it had previously spent buying in care for Y from the care agency.
Mrs X escalated her complaint to stage three of the procedure. There was a delay in this being arranged and Mrs X made a complaint to this office, which we upheld. The Council agreed to progress Mrs X’s complaint to stage three of the procedure and pay her £600 in recognition of her time and trouble.
When the complaint progressed to stage three of the procedure, Mrs X explained to the independent panel she wanted: a better understanding of why some parts of her complaint were not upheld; an understanding of what the Council was willing to offer in respect of backdating direct payments; an apology and more explanation for what happened and why; assurances there would be no repeat of the failings in this case.
During the panel hearing Mrs X was supported by an advocate. She explained her view that she believed her own autism diagnosis had been used against her by the Council. Mrs X felt the Council took advantage of the difficulties she sometimes had processing information. Panel members asked the investigating officer and independent person to confirm the complaint they had investigated was as agreed with Mrs X and they confirmed it was. There was then discussion around those parts of the complaint not upheld. The panel also said it considered an additional bundle of evidence provided by Mrs X, which she has also copied to me.
The panel decided not to change any of the findings of the stage two report. It noted the Council had said it would pay Mrs X around £1650 in backdated direct payments. It recommended the Council: review its engagement with parents to offer a clearer explanation of what it meant by respite payments and what these can cover in the future; review its direct payment procedure to make sure all staff understood it and that it functioned “appropriately and within an agreed timeframe”; finalise a “financial reimbursement” of direct payments to Mrs X and make an offer to recognise the time and trouble she had expended in pursuing her complaint; offer Mrs X a further written apology; respond to questions raised by Mrs X which had been raised in a preparatory meeting before the stage three hearing.
In June 2022, the Council’s Director of Social Care sent its final response to Mrs X’s complaint. It indicated general agreement with the procedural improvements recommended by the panel. It also offered Mrs X a further apology and a payment of just under £2000, including £350 for Mrs X’s time and trouble in addition to the back payment of direct payments. And in a separate document, the Council answered the questions posed by Mrs X before the stage three panel hearing.
My findings
I explained above that, generally, the Ombudsman will not re-investigate the events covered by a complaint that has passed through all stages of the children’s services complaint procedure. The reason for this is because that procedure provides for an independent investigation of the complaint and independent scrutiny of its findings. Unless an investigation appears significantly deficient therefore, we are likely to rely on what it found when we consider the complaint.
In this case I do not find grounds to dispute the findings of fact as set out in the stage two investigation report and agreed by the stage three appeal panel. I have read through the bundle of evidence Mrs X gave to the stage three panel and I do not find it contained anything that would: dispute the finding the Council held frequent enough child in need meetings; cast doubt on the suitability of the care agency employed to support Y; or show the Council was aware of Mrs X’s wish for Y to have a residential placement, as suggested by CAMHS in July 2019.
On this last point I note that even if I could find such evidence it would likely not have impacted on the findings of the investigator or appeal panel. Because the stage two report had already found the Council had failed to adequately scrutinise the suggestion made by CAMHS that Y needed residential care.
Another point of concern for Mrs X is the finding the Council was not at fault for not passing Y’s case to its children with disabilities team. On the facts of the case, I do not consider this can be disputed. Because the Council assessed Y had ‘moderate’ needs (as opposed to severe or profound needs). This meant his case was managed by a generalist child in need team rather than the children with disabilities team.
However, I consider this matter brings into focus the impact of the Council’s failings on Mrs X and Y. I do not consider the stage two or stage three investigation of her complaint properly addressed the implications of where the Council had been at fault, as summarised in paragraph 16. I note in particular the stage two report was vague on the question of financial remedy and the panel gave no clear direction to the Council on this either. Both accepted as a matter of principle it was desirable for Mrs X to have some recompense, but they left the detail of that for the Council.
I have therefore reconsidered the injustice caused to Mrs X and Y, beginning with that caused by the inadequate social care assessments. It is a judgment for social workers as to which category of need an individual child or young person meets. But that judgment will depend on an adequate assessment of needs. In this case, the Council has accepted its assessments of Y’s needs were inadequate. In which case I consider there must be some uncertainty around whether an adequate assessment would have still led to the finding Y had ‘moderate’ needs. And whether as a result the Council put his case on the right pathway for support in 2018. This uncertainty is a form of distress and so an injustice to Mrs X and Y.
It is also not possible to say how Y may have benefitted if the Council had provided support through a direct payment to Mrs X sooner. But that would have enabled his care to be better personalised. So, there is a second injustice in the form of further uncertainty.
It is also possible to conclude there was a loss of service to Y because: there was an avoidable delay in social care support being provided to Y as the Council did not assess his needs sooner; there was an unacceptable reduction in that support in December 2018.
So, these were a third and fourth injustice caused to Ms X and Y.
On balance, I also find a fifth injustice as a further loss of service when considering the amount of support Y should have received during the time covered by the investigation. I take account of several pieces of evidence here: First, amongst the supporting evidence Mrs X gave to the appeal panel she enclosed the minutes of a Care, Education and Treatment Review (CETR) held in June 2019. This was arranged by an NHS body supporting Y but attended by a representative on behalf of children’s services. It is clear from those minutes that the consensus view of professionals was that Mrs X needed more support in caring for Y, especially during holiday periods and including some residential respite provision.
Second, the complaint papers do not indicate the Council gave any particular attention to holiday periods nor Mrs X’s needs as a carer (for example by undertaking a carer’s assessment).
Third, I note the more extensive service Y now receives as an adult.
While it is possible that Y’s needs have escalated year on year since June 2018, given all the above I consider it is more likely than not that Y needed more than eight hours a week care from the time the Council arranged this.
A sixth and final injustice is the distress caused to Mrs X. She was caused distress by the delay in the Council engaging with Y’s needs and with the inappropriate reduction in his support in December 2018. She was also caused distress by its communication failings. Especially around the failure to explain the Section 47 process which left Mrs X with fear her other children may be taken into care. It should be remembered all these events took place at a time of exceptional pressure for Mrs X.
In considering how these injustices should be remedied I do not consider the correct approach is to base this on a sum of what direct payments would have cost the Council, less the cost of care already provided, between July 2018 and May 2019. Instead, a financial remedy should consider the loss of service, uncertainty about what an adequate service would have looked like and the distress caused to Mrs X. I set out my thinking when making recommendations at draft stage, and with this having been accepted by the Council, that is now repeated in the section headed ‘agreed action’ below.
Before turning to that, I also considered Mrs X’s specific concern the Council took advantage of her disability in its mishandling of Y’s case. I could not make this finding. This was because this matter did not form part of her complaint investigated through the complaint procedure and in any event, I found no evidence that would lead to that finding.
Finally, I also considered the issue of ‘time and trouble’ in this case. This was problematic as Mrs X made us aware in March 2022 of delays in the complaint procedure completing. We recommended, and the Council subsequently paid, £600 to recognise Mrs X’s time and trouble. That decision covered the time before the Council arranged the stage three panel.
In which case I do not consider the Council needed to also act on the stage three panel recommendation that it pay something to Mrs X for her time and trouble. Nor did I consider any delay in responding to the panel and its recommendations would necessitate a separate award. In deciding on a fair remedy for Mrs X’s injustice, I therefore ignored the offer made by the Council of £350 for Mrs X’s time and trouble as this was substituted by the £600 award. Mrs X confirmed to me the £600 was paid to her, but she had refused the offer of £1650 from the Council for unpaid direct payments considering this inadequate, pending the outcome of this investigation.
Agreed action
The Council has accepted the findings I have set out above. To remedy the injustice caused to Mrs X and Y it has agreed that within 20 working days of this decision it will: offer a further written apology to Mrs X accepting the findings of this investigation; pay Mrs X a total of £2400 for the injustice caused by these events made up as follows; £250 in recognition of the uncertainty caused because of its inadequate assessments; £250 in recognition of the uncertainty caused by its handling of the direct payments issue; £400 in recognition of the loss of service caused by delay in offering a social care assessment at a time when the Council knew the family were struggling to meet Y’s needs; £500 in recognition that the service provided to Y, of a maximum of eight hours a week support, was likely always inadequate especially during holiday periods and because of an inadequate consideration of respite care; a further £500 for the time between January and May 2019 when the Council reduced Y’s care package resulting in a further loss of service; £500 in recognition of Mrs X’s distress.
I am satisfied these payments can be made to Mrs X and there is no need to breakdown an award between her and Y. This is because the remedy covers a time before Y turned 18. The remedy is for both their injustice.
I am also satisfied that I do not need to make any further procedural recommendations in this case, noting the recommendations at both stage two and three of the complaint procedure. I am satisfied the acceptance of these recommendations shows the Council has tried to learn wider lessons from this complaint, which I welcome.
Final decision
For reasons set out above I uphold this complaint finding fault by the Council caused injustice to Mrs X. The Council has agreed action that I consider will remedy that injustice. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman