The Ombudsman's final decision
Summary: there is no evidence of fault that has caused Ms C injustice as a result of Leicestershire County Council’s consideration of the matters she raised in her complaint in 2021
The complaint
The complainant, whom I shall refer to as Ms C, says that Leicestershire County Council failed to properly investigate a complaint she made in July 2021 about services provided by its children’s services team from February 2020.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended) 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)
How I considered this complaint
I discussed the complaint with Ms C and considered the written information she provided with her complaint. Due to the complexity of the complaints background I also discussed the complaint with the Council in the early stages of my investigation to understand which complaints had been addressed by its officers.
I made written enquiries of the Council and considered all the information before reaching a draft decision.
Ms C 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
What should have happened 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.
Under the law individuals are entitled to make a subject access request (SAR) to councils and other bodies to obtain a copy of personal data that organisation holds about them.
Parents/carers of disabled children can ask for a direct payment to meet the needs of the child. Direct payments must be used by the parent/carer to meet the child’s needs. Persons receiving direct payments must agree to having them and keep and submit accounts. There are other ways to manage payments for care such as a managed budget where the council holds the budget and buys in care for example.
What happened In May 2021 the Local Government and Social Care Ombudsman (LGSCO) issued a final decision on a previous complaint made by Ms C. This complaint was about the Council’s failure to implement actions it had said it would as a result of a complaint she made to the Council about its children’s services team in November 2018. That investigation by this office considered actions that took place following that complaint up to late 2020. Most of the thirteen parts of that complaint were upheld by the Council at stage 2 and a number of recommendations were made. These recommendations included an apology to Ms C, that she should be provided with information that had previously not been provided to her, that some staff training should be provided, a new social worker should be appointed to take a new approach and that some changes should be made to services to address the way they would work in future. The Council drew up an action plan in December 2019 to implement these recommendations.
The conclusions of that earlier complaint investigation by this office under case reference 19011066 in May 2021 were: there were two elements of the action plan that had not been completed: a carer’s assessment for Ms C and the introduction of a policy for recording meetings; the Council had offered a payment to remedy the loss of services up to February 2020 but that if Ms C felt that other services were lost after that date she could submit a new complaint about that and could ultimately make a further complaint to the Ombudsman if she felt dissatisfied after the Council’s response.
There were two elements of that earlier complaint to this office that we did not investigate because Ms C had asked the Information Commissioner’s Office to consider them and they related to inaccurate information on the Council’s files and a failure to deal properly with SARs.
Ms C duly made a further complaint to the Council in July 2021. This complaint was that the Council: failed to deal with her complaint reasonably or in a timely manner from Feb 2020; constantly changed agreements/position in the action plan agreed in December 2019; did not inform her she could escalate her complaint to stage 3; did not offer or provide an advocate; used solicitors when it knew she could not access free legal advice; delayed finalising the action plan until October 2020; failed to provide her with correct information about the stage 2 complaints process; asked her to make a 3rd SAR and then refused to provide information saying she had confused matters; asked her for a list of lost services in March 2020 but did not respond until June 2021; failed to deal properly with issues around the rectification of records; conducted reviews of CIN rather than a reassessment and left incorrect info about significant harm of the case records; failed to manage the stage 2 resolution effectively or in line with process; and failed to complete actions of LGSCO decision under ref 19011066 at points 58, 75, 84, 89.
The Council provided its response in August 2021 stating: LGSCO had already addressed the complaint about the handling of the complaint from February 2020; the action plan was amended several times between October 2019 and August 2020 due to progress being made on it. So, the amendments were essentially updates on progress; the issue about the stage 3 had already been addressed and LGSCO had been investigated; the Council was not under a duty to appoint an advocate but Ms C did have support in a number of meetings in any event; the Council was entitled to seek its own legal advice; the Council had tried to agree an action plan with Ms C, had adjusted it only my occasions but was unable to reach an agreement with her on it. It said the final version was sent to Ms C in October 2020; the Council was satisfied that the stage 2 process was properly explained to Ms C; the SARs were responded to; the case files issues were addressed and rectified (but issues appear to be ongoing); a reassessment was offered many times and a Child in Need review took place in July 2021; action related to the Action Plan was delayed in 2020 as a result of the Covid-19 pandemic; the stage 2 complaints and adjudication process had been addressed by LGSCO; action to deal with individual council officers as a result of the matters raised in Ms C’s complaint were addressed with members of staff but that information could not be provided in detail to Ms C as it related to personnel matters; the Council had completed the actions it said it would related to paragraphs 58, 75, 84 and 89 of our previous decision statement. Two of these paragraphs relate to issues that we previously investigated and/or the Council agreed it would take action on. These are the issuing of a new agreement on direct payments and that it will flag information Ms C considers is inaccurate on its files. Two of these paragraphs relate to Ms C’s request for a mediator but on which the previous investigator decided he would not make any recommendations for action and the other related to a matter that we previously said we would not investigate as it related to matters that could be raised with the Information Commissioner’s Office.
Further to my telephone conversation with Ms C in February 2022 I agreed to include in my investigation the following additional points which Ms C identified as the most significant outstanding issues: the failure to complete a carer’s assessment for Ms C’s daughter; the failure to backdate her carer’s payments to March 2020; and the failure to update her direct payments agreement to confirm she would receive four weeks notice of any termination of this agreement so that she could give proper notice to any carers she was employing.
Council’s comments on this complaint Reassessment of child in need plans The Council has provided evidence in the form of email correspondence with Ms C which confirm that reassessments were offered in June 2020. It agreed these would be undertaken by an independent social worker who had been appointed by that time. In response Ms C replied stating she believed that rather than a new assessment the existing assessment would simply be amended to remove inaccurate information and that that care package itself would not be changed. Based on the information I have seen it appears that the previous assessments had already been signed off so the way to obtain updated information was to complete new assessments as offered or to update child in need plans during the usual review process. The previous complaint investigation by this office addressed this matter up to May 2021 stating that by November 2020 amendments had been made to the child in need plans but the Council was unable to reach agreement with Ms C on these plans. As a result the plans were being enacted though remained in draft. The Council considered the plans met the children’s needs and the independent social worker was noted to agree with this. The investigator found no fault in the Council’s approach to these child in need assessments/reviews.
Ms C says that in January 2022 the child in need plans from July 2021 were formally agreed in writing. She says a further review of the child in need plans took place in March 2022 and these were agreed. She says a further review in April 2022 was due to be agreed following discussion about this in June.
The Council says the assessment is still progressing but hasn’t been agreed yet. It says it remains in the same situation as previously: it is unable to complete these child in need assessments as it cannot reach agreement with Ms C about them.
Direct payments agreement that confirms four weeks notice will be given to cancel the arrangement Again this issue was addressed by my colleague in the previous complaint. The finding on that complaint was that the Council was about to issue a new agreement to confirm that arrangements could be cancelled with four weeks notice.
The Council has provided evidence that it issued an agreement in December 2021 that confirms that either the Council or Ms C may terminate the direct payments agreement by giving four weeks in notice to the other party. It also provides that the Council may end the agreement with immediate effect if Ms C becomes “permanently incapable of managing the direct payment”. Examples of such a situation includes where payments are not being spent on the agreed services or carers are not paid correctly.
This is a contract between the Council and Ms C and appears to have a standard format and content.
Ms C’s carer’s payment The findings on the complaint we investigated and which concluded in May 2021 found that the Council was completing a carer’s assessment at that time and that this assessment had been delayed by 17 months.
Ms C has provided me with a copy of a carer’s assessment completed in 2021 which confirms a weekly carer’s allowance of around £115 a week was agreed then and has been paid since. I will address Ms C’s request that this payment should backdated below.
Flagging of documents of the file This was referred to in paragraph 75 of our previous decision dated 1 April 2021.
The Council says Mrs C has not provided details of what she wants flagged so this has not been actioned yet.
Carer’s assessment of Ms C’s daughter The Council has corresponded directly with Ms C’s adult daughter about this and has essentially told her that it does not believe she would qualify for assessment as a carer under the Care Act 2014. If Ms C’s daughter wishes to pursue this further it appears this is something she will need to pursue with the Council and provide it with further information if she believes it has misunderstood her request or what care she is providing.
Is the Council at fault and did any fault cause injustice?
Of the complaints Ms C made to the Council in July 2021 and its response I consider the issues related to SARs and the accuracy or rectification of information on files remain matters that we should not address because Ms C had already taken these matters to the Information Commissioner.
The previous investigation by this office addressed some of the complaints repeated in the new complaint and so I cannot address them again now. These complaints are that the Council: constantly changed agreements/position in the action plan agreed in December 2019; did not inform Ms C she could escalate her complaint to stage 3; delayed finalising the action plan until October 2020; failed to provide her with correct information about the stage 2 complaints process; and failed to manage the stage 2 resolution effectively or in line with process.
This leaves the following for me to address now: the Council used solicitors when it knew she could not access free legal advice. I accept the Council’s comments on this which are that it is entitled to seek its own legal advice if it considers it needs this. It seeking this does not mean that Ms C has to seek her own legal advice. There is no fault by the Council; it appears Ms C included a complaint about advocacy in another complaint to the Council that did not form part of my investigation of this complaint and which reached its conclusion at a stage 3 review panel in September 2021. As a result of that complaint the Council agreed to consider whether Ms C needed an advocate and mediation. As this did not form part of the complaint I have investigated (which is the complaint made in July 2021 and responded to by the Council in August 2021) I have not therefore considered this complaint further; Ms C complained that she provided the Council with a list of lost services from March 2020 but the Council did not respond until June 2021. I cannot see that the Council provided a response to this issue when Ms C raised it in her complaint of July 2021. On balance I am not persuaded I should consider this omission amounts to fault: this is because the complaint letter was highly complex and detailed and it appears that this small element of that complaint was simply overlooked. In addition, the previous complaint to this office addressed the loss of services up to February 2020 and I can see there was significant correspondence between the Council, Ms C and her solicitor on the loss of those services in early 2021. This related to services not received in 2018 and 2019. A payment to acknowledge these lost services was agreed and considered by this office as part of the earlier complaint. I do not know what services Ms C says were lost after March 2020 and have seen no references to these in any correspondence after May 2021. So, there are no grounds for me to conclude there was any fault by the Council in relation to the alleged failure of the Council to reply to her about information she provided about lost services after March 2020 as I have seen no evidence that Ms C provided this information to the Council since the decision on the previous complaint was issued in May 2021; Ms C said the Council conducted reviews of child in need plans rather than completing a reassessment. This issue was previously considered by my colleague up to May 2021. Since then it appears the Council has conducted reviews. Whilst amendments as a result of these reviews have not been agreed by Ms C, these reviews of the children’s needs have been undertaken. It is not for me to consider the merits of these amendments. I do not consider there are grounds for to consider there is evidence of fault in relation to these reviews having been undertaken rather than reassessments. In fact Ms C seems to suggest she is happy with the changes that have been made since July 2021; and Ms C says the Council left incorrect information about significant harm on the case records. As I have stated above issues related to the accuracy of records are matters for the Information Commissioner’s Office to consider and so are not matters I will address.
A decision on the delay regarding the completion of a carer’s assessment was reached by this office in May 2021. That decision by this office did not ask the Council to provide any remedy for this delay or ask the Council to consider backdating any increased carer payments depending on the outcome of that assessment. As the delay has already been considered by this office and fault found on that I cannot now consider any concerns about the remedy for that complaint.
The previous investigation by this office considered the issue of the direct payments agreement and it seems that the agreed action on that complaint was taken: a revised agreement was issued. It seems to me that the direct payments agreed is a standard document. I do not consider there is evidence of fault in relation to this part of Ms C’s complaint.
As Ms C’s daughter is an adult I consider it would be a matter for her to pursue with the Council if she is unhappy with any decision not to assess her or pay her as a carer for her younger siblings. I have not therefore considered this matter further.
The final point for me to address is the complaint that the Council failed to complete actions of LGSCO decision under ref 19011066 at points 58, 75, 84, 89. I have carefully considered these paragraphs and find the following: paragraph 58 of decision reference 19011066 states that direct payment agreements would include that arrangements would require four weeks notice of cancellation and that the Council would issue a new arrangement to Ms C to reflect this. This was not a recommendation of the that previous complaint but, in any case, the Council has since issued a new arrangement reflecting this as referred to above. Ms C does not have to sign this agreement if she is unhappy with it or if she does not want to receive direct payments and could discuss other means of managing the personal budgets if she wishes. If she considers the agreement is in any way legally flawed this is a matter she could discuss with her solicitor; paragraph 75 of decision reference 19011066 states that “The Council has agreed that any information that Ms C feels is inaccurate can be flagged as such”. As I have stated above it appears that some of this has been addressed but the Council says that Ms C has yet to provide information about ongoing issues related to this. Ms C disputes this but I have seen no evidence that persuades me this information was provided before my investigation of this complaint; paragraph 84 stated that Ms C wanted the Council to appoint a mediator but the investigator of case reference 19011066 did not make a recommendation that this should happen and commented that the Council had appointed an independent social worker. There is no further role for me to consider this paragraph further as no recommendation was made; and paragraph 89 of case reference 19011066 refers to part of the complaint that the investigator did not address as it was outside the Ombudsman’s jurisdiction to consider. He did not address this as it related to SARs and so a matter for the Information Commissioner. I will not therefore address these issues now.
Final decision
There is no evidence of fault that has caused Ms C injustice as a result of the Council’s consideration of the issues she raised in her complaint in 2021.
Investigator's decision on behalf of the Ombudsman