The Ombudsman's final decision
Summary: Mrs X complained that the Council failed to deal properly with her complaint under the three-stage children's social care complaints procedure. The complaint was about failure to respond adequately to her requests for extra social care support for her disabled son. The children’s social care complaint investigation identified failings by the Council, and there were faults in its complaint handling found in a previous Ombudsman’s investigation. But we find that the Council was not at fault in dealing with the complaint since then. It has provided an appropriate response to the complaint.
The complaint
Mrs X complained that the Council failed to deal properly with her complaint under the three-stage children's social care complaints procedure. The complaint was about failure to respond adequately to her requests for extra social care support for her disabled son. She says the Council: wrongly limited the timeframe for the investigation to the period February 2019 to April 2020; failed to ensure the stage 3 Review Panel considered all her evidence; refused to provide her with minutes of the stage 3 Review Panel meeting; and failed to carry out actions agreed as an outcome of the complaint including incorporating her son's social care provision into his Education, Health and Care Plan.
As a result she says she and her son have suffered distress, trauma, isolation and anxiety through lack of support.
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
I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries, including all the complaint correspondence. Mrs 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
Relevant law and guidance Statutory Children’s social care complaints procedure The Children Act 1989 and statutory guidance ‘Getting the Best from Complaints’ set 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 Review Panel. There are set timescales at each stage of the process.
The Review Panel must produce a written report with a brief summary of the hearing and the Panel’s recommendations. The Panel must send the report to certain people including the complainant, the Council and the Independent Person from stage 2 within five working days of the Panel meeting.
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.
Child and family assessments Councils 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) The council carries out an assessment to determine what the child’s needs are and whether to provide services to support those needs. Under statutory guidance ‘Working together to safeguard children’ assessments should be completed within 45 working days.
If a parent carer of a child in need requests it, the council 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.
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. Sections H1 and H2 are for social care provision.
What happened The following is an account of the key events relevant to my investigation. It is not intended to cover everything that happened.
Mrs X’s teenage son, B, has Downs Syndrome, severe developmental delay and has a diagnosis of Autism Spectrum Disorder. He is non-verbal. B has been receiving support as a Child in Need since 2008. He has an EHC Plan and at the time of the events in this complaint was attending an independent specialist school for pupils with autism. There were regular Child in Need reviews.
During the summer of 2019 Mrs X became concerned that B’s behaviour was deteriorating. She contacted B’s social worker who carried out a home visit followed by a Child in Need review in October.
In November 2019 Mrs X contacted the Council to ask for an updated carers need assessment. In mid-December B’s school asked the Council for extra support for Mrs X and B. The Council agreed to carry out a new Child and Family Assessment. Over Christmas the children’s social care emergency duty team received a referral from the health service saying Mrs X was very upset by B’s behaviour and was in need of support.
The social worker visited Mrs X and B at home in the second week of January 2020 and contacted other agencies involved with B as part of the assessment. The was followed by a home visit by the crisis team to carry out an assessment and then a Child in Need review at the respite care placement at the end of the month.
The Council completed the assessment in mid-February. At the point when the assessment was carried out, the care package in place included the following provision per year: 28 overnight respite sessions 117 hours support at home and in the community during term time 48 hours support during the school holidays taxi transport between school and the respite placement.
Following the assessment, on 10 March, the Council’s Resources Panel agreed an increase in B’s care package to start from 1 April 2020. The new package included: 74 overnight respite sessions 373 hours 2:1 support at home and in the community during term time Additional trips, outings and support with activities including during school holidays Transport between activities Nursing care support at the highest level.
Later in March the Council agreed some extra funding for emergency support during the COVID-19 pandemic.
Complaint At the end of January 2020 Mrs X made a formal complaint to the Council about lack of effective support for her son and poor communication from the Council. She complained about a lack of response over Christmas 2019 when she had asked for extra help.
The Council gave its stage 1 response on 10 February. It confirmed the current care package and said the social worker was in the process of completing the Child and Family Assessment with a view to increasing the support offered. The Council explained what it had done to respond to Mrs X’s requests for help in December but said there had been difficulties with availability of staff in the Children with Disabilities Team on weekends and bank holidays.
The Council gave Mrs X dates when it said it would send her copies of minutes of the latest Child in Need review, complete the assessment, and apply to the Panel for extra funding.
Mrs X was not happy with the response and asked to go to stage 2 of the children’s social care complaints procedure. The Council agreed in March but in August Mrs X complained to the Ombudsman that there had been no progress with the investigation. Following the Ombudsman’s intervention the Council agreed to start the stage 2 investigation. It agreed a statement of complaint with Mrs X in November. The investigation was put on hold from mid-December 2020 to the end of January 2021 because Mrs X was considering making an application to the courts for Judicial Review against the Council. The stage 2 investigation was completed in February 2021.
At stage 2 the complaint and the findings of the independent Investigating Officer (IO) findings were as follows: Complaint 1 – failure to deal properly with stage 1 complaint. Upheld. The Council had missed some aspects of the procedures and there was confusion about escalating to it stage 2.
Complaint 2 – failure to carry out some of the actions agreed as a result of the stage 1 complaint. Upheld as there was some delay in completing the Child and Family Assessment and making the funding panel decision.
Complaint 3 – delay in telling Mrs X who B’s new social worker would be after the social worker left in February 2019. Upheld. There was no handover from the previous social worker to the new one, who did not attend the Child in Need meeting until June.
Complaint 4 – lack of direct response to Mrs X’s request for a new assessment in August 2019 when B’s behaviour deteriorated. Upheld ‘on balance’. There was no evidence of a response although Mrs X’s carers assessment was completed in mid-March 2020 and the new Child and Family assessment completed in mid-February.
Complaint 5 – failure to send Mrs X minutes of various Child in Need meetings in 2019 and 2020 until March 2020. Upheld as they were not sent and there was nothing in the Council’s procedures about sending them.
Complaint 6 – social worker forms for Child in Need review meetings were missing information. No finding as there was no detail about what was said to be missing and the social worker was off sick and not available for interview.
Complaint 7 – Mrs X did not receive the Child and Family Assessment completed in February 2020 until late March 2020. Not upheld as there was evidence she had a copy although she may not have received the final amended copy until late March.
Complaint 8 – there were errors and omissions in the Child and Family Assessment of February 2020. Upheld. The social worker accepted there were some errors in the original document.
Complaint 9 – failure to involve Mrs X in the decision or planning of the proposed care package before the Resource Panel met on 10 March 2020 and delay in sharing the draft care package with her. Not upheld. Mrs X wanted an increased care package with more overnight respite. There was evidence the Council contacted her about this and so the IO concluded Mrs X she was involved in the care package that went to the Panel.
Complaint 10 – that the social worker made an inappropriate suggestion in December 2019 to that Mrs X should use the NHS 111 service if she was struggling to care for B. No finding as there was conflicting evidence. There was no record that the social worker gave her this advice but Mrs X was adamant she did. Mrs X did call the NHS 111 about her difficulties in coping B's changed behaviour and spoke about needing more support in his care package. The service made a referral to the Emergency Duty Team at the Council and the duty social worker from the Children with Disabilities team contacted her on 27 December.
Complaint 11 – failings by the social worker including poor communication, lack of support and advocacy for B in September and October 2019 over his transport arrangements, ignoring Mrs X’s concerns over Christmas 2019, delay in preventing a family crisis from December 2019 to January 2020 and delay in assessing B’s needs. On balance not upheld. The social worker was aware of the worsening situation over Christmas 2019 but could not assess B’s needs until February due to the volume of work she was dealing with. She did not ignore the transport problems and tried to resolve them.
In response to the IO’s recommendations the Council agreed to take the following action: Apologise to Mrs X for the failings identified in the investigation. The Council apologised to Mrs X.
Complete B’s EHC Plan and amend section H1 to include the social care provision that was agreed by the Resource Panel in March 2020. The Council’s response to the complaint said its “understanding from the team is that this has since been finalised”.
Make a payment to recognise the impact of poor practice on Mrs X and B. The Council offered Mrs X £200 for her time and trouble in pursuing the complaint and £250 for to recognise that the delay in dealing with her complaint contributed to the anxieties she was already experiencing.
Send Mrs X a copy of the care plan for 2020/21. The Council said this had been done.
Provide Mrs X with details of its policy on services for children with disabilities.
Share the stage 2 report with the Children with Disabilities teams so they can learn from the complaint.
In May 2021 Mrs X’s solicitor asked the Council to take the complaint to stage 3. He submitted a written complaint on her behalf challenging the stage 2 findings on complaints 6, 7, 9 and 11.
The Council refused the request as it said it was out of time. Mrs X complained to the Ombudsman about the refusal and we investigated the complaint. In November 2021 the Ombudsman issued a decision on the complaint. We found that the Council was at fault in failing to consider its discretion to allow the complaint to go to stage 3 even though it was out of time. The Council agreed to arrange a stage 3 Review Panel.
The Review Panel hearing took place in December 2021. It was held remotely because of COVID-19 restrictions. Mr and Mrs X attended. They had also submitted a detailed set of comments and further information running to over 100 pages.
The Chair’s report of the hearing says: “[Mrs X] confirmed that her focus was for the Panel to review what action had been taken by the Service in relation to her stated desired outcomes following the Stage 2 adjudication letter dated 26 February 2021” “In relation to the stage 2 investigation report, [Mrs X] explained that after some two years and in the absence of a key member of staff little would be gained by re-visiting the specifics of each of the complaints. In line with [Mrs X’s] request, the Stage 3 Review Panel only reviewed the desired outcomes and not the specific outcomes to each of the complaints set out within the stage 2 investigation report.”
The stage 3 Review Panel’s findings, as far as relevant to this complaint, were as follows: Apology. The apology was not adequate as it was too general and was included as part of the outcome letter on the complaint. The Panel recommended that the Council send ‘appropriate apology’ to the family.
Updating B’s EHC Plan. The Panel noted this was not an issue investigated at stage 2 but it was a simple matter and the Council should clarify when it had issued the final amended EHC Plan incorporating the extra social care provision agreed in March 2020.
Financial remedy. The Panel found the initial offer of £450 did not take account of any loss of service or the impact on the family as it was to cover time and trouble and the delay in the complaint investigation only. It recommended that the Council consider increasing the offer.
Access to B’s social care case records. The Panel noted this issue was outside the scope of the stage 2 investigation but recommended that the Council update Mrs X on progress with her request for access to records.
Copy of B’s care plan. The Panel said if Mrs X had not received a copy the Council should send her one.
Statement from the Council describing its policy and services available for children with disabilities. The Panel recommended that the Council should signpost Mrs X to information, including any temporary arrangements to take account of COVID-19. If she believed there had been breaches of equality legislation the Council should explain what action she could take.
After the Council wrote to Mrs X with its final response to the complaint after considering the stage 3 recommendations, Mrs X sent the Council comments on the Panel hearing. She commented on several of the stage 2 findings explaining why she disagreed with them. She said the IO should have looked at the period February 2020 to February 2021, and it was unfair to restrict the investigation to the period February 2019 to April 2020. She referred to events between August 2020 and February 2021. She also complained about delay in updating B’s EHC Plan to include the social care provision. She said the sum of money the Council had offered her was not enough to recognise her distress or that her son had been left without support for seven months. She confirmed that the Panel had considered and acknowledged her detailed submission for the stage 3 hearing.
The Council replied in January 2022. It pointed out that the Review Panel had not commented on the stage 2 findings in line with Mrs X’s request to focus solely on the outcomes and recommendations. With reference to the Panel’s recommendations the Council took the following action: enclosed a more detailed and specific letter of apology; attached a copy of the latest EHC Plan which had been amended following a Tribunal Order in October 2021; offered Mrs X an extra £500 to reflect the impact of its failings on B, making a total of £950; clarified the funding of the care package, a total of over £160,000 per year; provided an update on her request for access to records; provided a copy of B’s care plan and apologised for not providing it before; provided a link to information about services available for disabled children and young people, including short breaks.
Mrs X was not satisfied and complained to the Ombudsman. In her written complaint she referred to: social workers ignoring her son’s needs since December 2019; delays in the service up to February 2022; refusal to complete a child needs assessment; the stage 2 investigation setting the time frame for the investigation as February 2019 to April 2020; the Review Panel not considering all the documentary evidence she provided; events that took place between January 2020 and February 2022; lack of social care provision for seven months; delay in amending section H1 of B’s EHC Plan.
In discussion with Mrs X she said the issues she wanted our investigation to focus on were: the timeframe of the stage 2 investigation; failure to include the care plan in the EHC Plan; and delay in putting in the provision in the 2020-2021 care plan.
Analysis My role is not to re-investigate all the issues in Mrs X’s complaint that went through the three stages of the statutory children’s social care complaints procedure. I would only do so if there was evidence of flaws in the investigation that might have affected the outcome. Mrs X says the stage 2 investigation was flawed because it wrongly restricted the timeframe to events between February 2019 and April 2020.
However the IO at stage 2 took the timeframe from the agreed statement of complaint that Mrs X signed. The events she complained about occurred between these dates. So I do not consider the IO was at fault in limiting the time period in this way.
Similarly events after the period considered in the statutory complaint investigation are beyond the scope of my investigation. Mrs X clarified that the seven month period she referred to when she said her son was without support occurred after April 2020.
I can consider delay in amending the EHC Plan to include the extra social care provision agreed in March 2020. This is because finalising the Plan was a recommendation of the stage 2 investigation and stage 3 review. I can consider whether there was delay in putting the extra provision in place after the Council agreed the increase in the care package. This is an issue closely bound up with the question of amending the Plan.
In response to my queries on these points, the Council confirmed that the additional support agreed by the Resources Panel in March 2020 was included in the amended final EHC Plan issued in February 2021. It said the extra provision itself was due to start on 1 April 2020 and it was put in place from this date.
From this information it appears there was delay in amending the EHC Plan for nearly a year. If social care provision had been agreed, it should have been included in section H1 or H2 of the Plan as soon as possible following the decision. But as the provision and funding was put in place from 1 April 2020, the delay in amending the Plan did not result in a lack of support. Mrs X says the Council then withdrew the support and failed to deliver it from April 2020 to February 2021. She says she had to threaten legal action to get the Council to restore the support and compensate her for the lack of service up to that point. The Council denies it withdrew the support and said it was available throughout the period but at times Mrs X either did not accept it or was unable to engage with it. However I do not need to investigate this issue further because even if there was a lack of support, it was not the result of delay in amending the EHC Plan, Mrs X says she has already had a remedy for it, and it is beyond the period dealt with in the children’s social care complaint.
Mrs X also complains that the stage 3 Review Panel did not consider all the information she provided. The IO provided a detailed breakdown of Mrs X’s submission and his response to assist the Panel. The Panel confirmed it had read and considered her written submission. Mrs X herself acknowledged it had done so when she sent her comments to the Council following the Panel hearing. I do not consider the Panel was at fault in failing to consider Mrs X’s arguments and evidence. The Panel’s report also provides evidence that it listened to what she and Mr X had to say.
Mrs X complains that the Council refused to provide her with a copy of the minutes of the Review Panel hearing. The Council has explained that formal minutes are not taken but the member of staff from the complaints team took notes of the meeting to help the Panel reach its decision. The Council says the Chair of the Panel explained to all those attending the meeting that these notes would not be circulated to all participants. There is no requirement in ‘Getting the Best from Complaints’ to share such notes with the complainant and I do not consider the Council was at fault in not doing so. The Panel was required to provide Mrs X with a copy of its report. The Council sent Mrs X a copy on 31 December 2021.
I have also considered how the Council responded to the stage 2 and stage 3 recommendations. The actions I have listed in paragraph 34 above show that the Council carried out all the agreed recommendations, apart from when providing the information about updating the EHC Plan. The Plan issued following the Tribunal Order was not the first one which included the extra social care provision agreed in March 2020. The Council has now clarified that it was the February 2021 Plan which first incorporated the extra provision.
The Council increased the payment it offered Mrs X after the Review Panel’s recommendation. It had already offered £200 for her time and trouble in pursuing the complaint and £250 for the unnecessary anxiety she experienced as a result of the delay in dealing with her complaint. It then offered a further £500 to recognise the impact of the rest of its failings on the family. In my view this is a satisfactory amount to reflect any loss of provision that occurred as a result of fault by the Council. the Council agreed to carry out a further child and family assessment on 18 December 2019 and it completed the assessment on 19 February 2020. This is within the required timescale. There was a short delay, as found by the IO, in getting the case to the Resource Panel in March 2020 and then the extra support was put in place around three weeks later.
I have not seen evidence of any significant delay in implementing the additional provision and the amount the Council has offered is in line with the Ombudsman’s guideline on payments for distress.
The stage 2 investigation found fault on the part of the Council. I have not re-investigated the complaint but have considered how the Council dealt with the complaint after it agreed to arrange a stage 3 review panel following the previous Ombudsman complaint. The Ombudsman found fault in the way the Council dealt with the complaint up to that point. I have not seen evidence of fault in the Council’s handling of the complaint since then. In my view the Council has provided a suitable response to the recommendations of the stage 2 investigation and the stage 3 review. Although I consider there was fault in the delay in issuing the amended EHC Plan after the March 2020 decision, the Council issued it promptly following the stage 2 recommendation and so it was not a fault in relation to the complaint handling. Also as the fault did not cause delay in putting the support in place I do not need to recommend any further financial remedy.
Final decision
Based on the evidence I have seen I do not find further fault in the Council’s handling of Mrs X’s complaint beyond the fault the Ombudsman found previously on her earlier complaint. I consider the Council has provided an appropriate remedy for the failings found in the investigation of the complaint under the children’s social care complaints procedure. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman