Summary: there was fault by Bradford Metropolitan District Council in the way it provided services to a disabled child. This fault caused injustice. The Council had already considered the matter under the statutory children’s complaints procedure and found fault. It had already offered a remedy to the complainant and taken action to ensure improvements in its future service provision. The Council should take action in the form of an improved remedy to Ms B to recognise the injustice caused.

The complaint

1. The complainant, whom I shall refer to as Ms B, complains about services she received from the Council’s Children with Disabilities Service in respect of her six year old daughter, X. Specifically she says it:
1. took too long to assess and provide her with respite care: she first asked the Council for help around January 2019 and nothing was provided until November 2020 when her circumstances were urgent and the care provided was consequently poorly planned;
2. failed to properly investigate and hold the respite care facility to account when her daughter sustained injuries there in November 2020 for which the staff provided poor and inconsistent explanations;
3. failed to provide respite care that she has been assessed as needing since September 2020; and
4. delayed in considering her complaint under the statutory complaints procedure.
2. Ms B says she has lost her job due to the lack of respite care. She has suffered significant distress due to the injuries to her daughter, the lack of support and the poor handling of the complaint and having to resort to the complaints procedure in order for these matters to be addressed.
3. The stage 2 investigation also upheld Ms B’s complaint that no further respite care has been provided to C since November 2020.

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The Ombudsman’s role and powers

4. 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)
5. 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.
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. An investigator discussed the complaint with Ms B and considered the written information she provided with her complaint. She made written enquiries of the Council and considered all the information the Council provided before reaching a draft decision.
8. Ms B and the Council had an opportunity to comment on the draft decision. I considered their response before making a final decision
9. 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.

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What I found

What should have happened

10. Section 17 of the Children Act 1989 requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
11. Section 2of the Chronically Sick and Disabled Persons Act (CSDPA) 1970 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.
12. Services which can be provided under section 2 CSDPA include:

• practical assistance in the home including home based short breaks / respite care; and
• recreational / educational facilities including community based short breaks.

13. The expectation of ‘Working Together’ is that an assessment which identifies significant needs will generally lead to the provision of services, but it is not the case that there is a duty to meet every assessed need. Whether a service is required depends on the nature and extent of the need assessed and the consequences of not providing a service. Councils may use eligibility criteria and take into account their available resources when providing services under section 17 of the Children Act.
14. If a council is satisfied it is ‘necessary’ to provide support services under section 2 of the CSDPA then services must be provided regardless of the council’s resources.
15. Assessments should take account of the needs of the whole family. While some services may be offered directly to the disabled child, services may also be offered under section 17 to parents or siblings.
16. The Courts have found (R (L and P) v Warwickshire CC, 2015) that not every disabled child will necessarily require a full assessment by a social worker. Those with lower-level needs may be assessed via Early Help. Councils should be able to demonstrate how they have determined the level of need.
17. Parents or carers of disabled children can ask for a direct payment (DP) to meet the needs of the child. The council must carry out an assessment and DPs must be sufficient to meet the assessed needs. DPs must be used by the parent or carer to meet the child’s needs. DPs do not affect any benefit entitlement. Persons receiving DPs must agree to DPs and keep and submit accounts.
18. The law sets out a three-stage procedure for councils to follow when considering complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.
19. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
20. If a complainant is not happy with a council’s stage one response, they can ask for it to be 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. Councils have up to 13 weeks to complete stage two from the date of request.
21. 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.
     

What happened

Background

22. Ms B’s young daughter, C, has significant disabilities. She has an EHC Plan and attends a special needs school. C has three siblings and lives with Ms B and her father.
23. In early 2019 Ms B asked the Council for help, specifically in the form of respite care. The Council’s children’s services team did not take any action until August 2020 following further referrals from professionals working with C.
24. A social work assessment was completed by the children’s social work team between around May and September 2020 and the case was then transferred to the Children’s Complex Health or Disabilities Team (CCHDT) in late September. Ms C was told CCHDT would then complete its own assessment and this would take up to nine weeks.
25. In late October the social worker requested a direct payments package for Ms B so that a personal assistant (PA) could be employed to give Ms B a break while a longer term arrangement was considered as part of the new CCHDT assessment. Two PAs were needed and people were identified as potential PAs for C. Shortly after this, members of the family became unwell with Covid-19.
26. In November 2020 C’s father was admitted to hospital with Covid-19. Given the exceptional circumstances the Council agreed to arrange one night of emergency respite care for C with one of its respite providers. This was then extended to two nights. When Ms B collected C on Saturday she found scratches on C’s face and bruises on her arm.
27. The council arranged a strategy meeting for the following Tuesday (three days later). The information I have seen about this states that the conclusion of that meeting was that C had inflicted the injuries to her face herself and that the cause of the bruises on her arms was inconclusive. As I understand it this was followed by a section 47 safeguarding enquiry.
28. The temporary direct payments package was agreed in early December.
29. The CCHDT assessment was completed in late January 2021.
30. Direct payments were put in place but the support is mostly provided in the family home. Ms B and her family would prefer C to have respite care away from the family home.

The Council’s consideration of Ms B’s complaints at stage 1

31. Ms B first complained to the Council at some point in 2020: I do not know the exact date as I have not seen a copy of the original complaint. The council responded in August 2020. Ms B had complained about:
• the Council’s failure to provide a formal response to her request for services from the CCHDT; and
• the failure of the CCHDT to complete an assessment of C’s needs despite support for this from C’s school and paediatrician.
32. The stage 1 decision confirmed that:
• Ms B had first approached CCHDT for help in January 2019 and asked for respite short break care for C who was then two years old. The Council confirmed that Ms B had already been in touch with the Council’s Early Help Team by then. The Council told Ms B it would not usually provide respite short breaks for a child as young as two years and suggested she seek help from Children’s Centres and Home Start instead or that the Early Help Team could offer help from a sleep clinic. CCHDT did not accept the referral;
• A special needs referral was made in April 2020. Again CCHDT declined the request as C did not at that time have a diagnosed disability (although she was in the process of being tested for genetic illnesses), did not have an EHC Plan and the Early Health Service were about to provide a support worker to work with C and her family. Ms B later provided evidence to show none of these points was correct;
• In May 2020 the Children & Adolescents Mental Health Service (CAMHS) team made a referral to the Council’s Multi-Agency Safeguarding Hub (MASH) asking the council to conduct an assessment of C’s needs. The MASH team undertook a brief assessment of risk of harm to C. The Council’s children’s services assessment team then began working with the family to undertake a single assessment;
• The Council partially upheld the complaint about the Council’s failure to provide a response to Ms C’s request for services from the CCHDT. It said the Council did not fully explain to Ms C why CCHDT would not be working with C or the family or why she did not meet the criteria;
• The Council also accepted that it did not fully explain the single assessment process to Ms C when it started so Ms C did not know that the assessment would consider all C’s needs. In addition the CCHDT team and the children’s services team did not communicate effectively to decide which service would complete the single assessment. This delayed the start of that assessment by around a month. The council confirmed that CCHDT were providing specific input to the single assessment in relation to C’s disability;
• The single assessment had not been completed by August and a new social worker had been allocated to complete it.
33. A second stage 1 response appears to have been provided in late September 2020. This was investigated by senior officers in CCHDT and the children’s services teams.
34. A third stage 1 complaint was submitted in January 2021 and responded to by the Council in March 2021. This focused on the injuries C had sustained while she was at the overnight respite provider in November 2020. It upheld her complaint that it should not have taken the respite care provider nearly two months to produce a report about the injuries to C. Ms C was dissatisfied that no clear explanations had been given about the bruises to C’s arms in particular and was also unhappy that inadequate care resulted in numerous scratches to her face.

Consideration of the complaints at stage 2 of the Complaints procedure

35. Ms B appears to have asked for the initial matters she complained about to be escalated to stage 2 of the complaint process in September 2020. The investigating officer and independent person were appointed then and the complaint agreed in early October. Following Ms B’s further stage 1 complaint following the injuries to C in January 2021 the issues in that complaint were added to the stage 2 investigation of the earlier issues that had started in autumn 2020.
36. The stage 2 report was issued in January 2022. The investigating officer notes in her report that she had considered the Council’s written records and interviewed a number of key social care staff for the investigation.
37. The stage 2 consideration of Ms B’s complaint upheld her complaints that:
• there were long delays in the Council’s CCHDT accepting a referral for C;
• there was delay in dealing with the complaint at stage 1;
• explanations of the injuries to C were poor and inconsistent;
• staff did not contact Ms B sufficiently during C’s stay at the respite unit; and
• regular respite had still not been arranged.

Stage 2 adjudication and action

38. The stage 2 adjudication was issued in February 2022. This confirmed the Council accepted the findings in the stage 2 investigator’s report.
39. An action plan was drawn up to:
• consider publishing CCHDT criteria for transparency for the benefit of parents, carers and professionals;
• issue an apology for the delay in CCHDT accepting the referral;
• ensure better integrated and cooperative working between social work teams and CCHDT;
• remind respite units to keep full and accurate records of injuries to children; and
• improve complaints handling by reminding staff of timescales and monitoring compliance.

Consideration at stage 3 of the statutory complaints procedure

40. The stage 3 review considered those complaints Ms B still felt dissatisfied about in mid-May 2022. To effectively manage the large number of individual complaints, the panel grouped the specific complaints into four categories:
• the delays in the referral to the CCHDT;
• the injuries C sustained whilst at the respite unit;
• the responses to the complaint and the report produced by the manager of the respite unit; and
• the ongoing failure to provide respite care.
41. The panel considered these and concluded/recommended:
• it would have been good practice to have assessed C before CCHDT refused to provide her with a service and given C’s medical and other diagnoses a specialist assessment was required. Even without a medical diagnosis information was available about the behaviour C exhibited. Without an assessment, the social worker had no grounds to say respite was not appropriate for C on the basis of her age. The panel upheld the complaint about the outstanding issues regarding the handling of Ms B’s referral to CCHDT;
• the panel did not have a remit to further investigate the injuries C sustained during her stay at the respite unit. However, the panel acknowledged that Ms B was upset by what she considered to be a lack of honesty by staff at the respite unit and their failure to take responsibility for the injuries C sustained while she was there. The panel accepted that, although staff at the respite unit said C was never left alone, this was not consistent with them also saying they did not know how the injuries to C happened. The panel noted that Ms B took a member of staff from C’s school to the respite unit and they advised staff at the respite unit how to handle and manage C’s behaviour. The panel therefore concluded that staff at the respite unit should have clearly understood how to manage C’s behaviour while she was with them. The panel concluded it was important that incidents such as the injuries to C were recorded promptly and accurately. However, the panel was unable to reach a conclusion as to whether the injuries were caused as a result of malicious treatment or negligence or that staff at the home deliberately sought to cover up what happened. At the same time the panel was clear in stating that the injuries to C’s face and arms did occur while she was staying at the respite unit. The panel also accepted that the Council responded properly to Ms B’s concerns when she reported them;
• The panel upheld the complaint about the reports compiled following the injuries to C. It said the manager’s report was delayed and that the stage 1 consideration of the complaint should have carefully considered how it could have resolved her complaint at that point; and
• The panel upheld the complaint that the Council had failed to provide any further respite care for C. This complaint had already been upheld at stage 2. The panel made further observations that the service provision for children with complex needs was not satisfactory due to the lack of available provision and the fact that a number of children were currently waiting for respite care given the inadequate provision for this. They also said this meant their parents and carers were also not being adequately provided for.
42. The panel made several recommendations to:
• undertake a strategic review of services for children with complex needs, their parents, families and carers;
• invite Ms B to the respite unit to see the facilities and meet staff – this had been offered but not arranged following the consideration of the complaint at stage 1;
• consider setting up a consultation group with parents of children with complex needs to gain their input and perspective;
• offer Ms B a payment to recognise the stress and inconvenience caused in pursuing her complaint; and

It also noted that the Council had already started to use a “needs led model” and published details of the CCHDT criteria as a result of Ms B’s complaint.

The action the Council has taken following the outcome of Ms B’s complaints

43. The Council confirms it has taken the following action:
• ensured the Council for Disabled Children completed a review of children with disabilities services in August 2022. Its recommendations included looking at the way referrals to the service are made and the referral criteria to make sure children receive the right services when they are needed. The Council says it is now planning to implement these recommendations and it will look at the services it has for providing respite for children with disabilities to improve what is available for families;
• arranged for Ms B to visit the respite unit in May 2022 with two senior council staff. Although this went ahead, it did not resolve Ms B’s dissatisfaction with the lack of explanation as to how and when C was injured during her stay there and it did not result in any resumed care there for C. The Council says it had hoped it could make this arrangement work for C because the respite unit is its specialist short breaks provision for children with complex medical needs; and
• the review undertaken by the Council of Disabled Children involved meeting representatives form local parent and care groups. The Council says it has also ensured that CCHDT have attended events with parent and carer groups. It has agreed to further improve its communication with parents and carers of disabled children and involve them in thinking about the services needed.
44. Ms B refused a £500 payment offered in June 2022.

Current provision

45. The Council’s assessment determined that C needed short breaks. The Council says it has tried to find this but it has “limited resources for children with such complex medical needs”.
46. The only overnight respite to date has been the two night stay in November 2020. No further provision has been made at the respite unit for C due to Ms B’s concerns about the injuries C sustained during that stay.
47. Due to the difficulties in identifying respite care provision for C, the Council says it has discussed making direct payments to Ms B to enable her to employ PAs for C. There was a period during the Covid-19 pandemic when C’s PAs were able to use the respite unit as a venue while it was closed for other service users. And then from April 2021 to March 2022 the Council found another venue for this: a children’s centre. None of this was overnight respite provision and since April 2022 it seems no other venue or suitable PAs have been found for daytime respite.
48. In October 2021 the Council said it used a brokerage website to try to find a provider for suitable overnight respite provision. It says it received no offers using this system. It tried using it again between June and October 2022 without success.
49. In addition the Council says it has tried to find suitably skilled providers using its own shared care service which uses foster care placements for respite breaks. Unfortunately it does not have any carers who are sufficiently skilled and knowledgeable to meet C’s needs.
50. Ms B has said she asked the Council to approach a named respite provider which is nearby but in a different council’s area. The Council says it did approach this provider in October 2021 but it did not have any vacancies at the time. I confirm that having seen the Council’s correspondence with this provider it did accept C on its waiting list for a service in November 2021.
51. By March 2022 the provider said it did not have any spaces and advised the Council to seek provision elsewhere because there were several children on its waiting list. In April the Council confirmed with the provider that C was still on its waiting list. In July the provider emailed the Council to say it wanted to review the paperwork about C with a view to undertaking a full assessment and then hopefully offering a placement in autumn 2022. The Council sent the relevant paperwork in August as requested but the staff member at the provider who was due to review it was away during that month. The Council chased the provider up a couple of times in August. At the end of October the provider said that it had reviewed the paperwork and decided they could not meet C’s needs because the method of feeding her required nursing provision that it did not have. The Council contacted its health providers to check the feeding process was in fact a nursing need. The health provider confirmed that a care provider could be trained to use the system by which C is fed but unfortunately it could not undertake this.
52. Since February 2022 the Council has put in place overnight care in the family’s home using a nursing agency two nights a week. It also says it has increased the frequency of Child in Need reviews to closely monitor, review and co-ordinate provision for C which is being provided from a variety of sources.
53. Commenting on the issues it has had with finding sufficiently specialist respite provision for C the Council says:
• there are currently 16 children waiting for short breaks with its two specialist providers;
• the longest has been waiting 18 months;
• it delivers respite in different ways including via direct payments, care provided in the family home or at other venues. Where a place cannot be found in a respite unit, it will always try to find an alternative provision. It will use the database to try to identify external providers but says that has not worked well due to a national shortage of carers. It has four foster carers who can provide specialist respite support for children with disabilities and it is trying to recruit more;
• it is setting up a new children’s home for children with disabilities which will have capacity to provide respite to children with particularly complex needs;
• it has applied for additional government funding to fund more short breaks care providers;
• as part of its review of disability services it will consider the amount of short break provision it has to try to better meet the local need for this.

Was the Council at fault and has this caused injustice?

54. The Council’s consideration of this complaint has been thorough and I found no flaws except for the delay which I will address below. I did not therefore re-investigate the matters but considered the findings and recommendations made.
55. The Council has already accepted there were a number of failings in the way it handled Ms B’s requests for support with C dating back to January 2019. I agree with its findings in relation to this. These failings caused injustice to Ms B. It delayed her access to additional support for C and her family and she may have missed out on such support. I cannot be certain of this because I do not know what facilities may have been available. However Ms B was certainly denied the opportunity to explore these options sooner and caused avoidable uncertainty about what support may have been provided.
56. The Council also accepted that the investigation of the incidents did not result in any clear explanation about how the injuries to C occurred. The Panel particularly recognised how upsetting this was for Ms B. I am not persuaded there is much more the Council can do now to find out with any certainty what happened. The Council’s failure to expedite the process and obtain records more quickly form the respite unit must have contributed to Ms B’s distress. It also possibly contributed to the absence of a clear explanation. The lack of a clear explanation of how C sustained the injuries whilst in its care caused significant distress to Ms B.
57. No further overnight respite care has been provided since C’s stay in the respite unit in November 2020. Again the Council has accepted this. It is not the case that it has failed to make provision for financial reasons. It has tried to find provision, and put daytime support in place, and more recently some overnight support in the family home. This goes some way towards lessening the impact of the lack of overnight respite care which it assessed C as requiring. I am satisfied the Council has done all it can to try to arrange this: C could have had further nights at the respite unit but I completely understand why Ms B did not want this given what happened to C in November 2020. The Council has tried to identify alternatives but has not been able to find anything due to the lack of suitable provision. It is now trying to address the provision of such specialist care in its area.
58. There were delays in handling the complaint under the statutory procedure. It took the Council around two months to provide a response at stage 1 to the complaint made in January 2021. That is more than the maximum 20 days permitted at that stage. The Council has already acknowledged this. The stage 2 consideration was incorporated into a stage 2 investigation that was already underway from October 2020. The details of the January complaint were agreed as part of that existing stage 2 investigation in autumn 2021. The stage 2 report was completed in January 2022 and the adjudication was issued in February 2022. The whole stage 2 consideration of these complaints clearly took significantly longer than the maximum 13 weeks permitted. The stage 3 meeting took place in mid-May. I am not sure when Ms B requested this but assuming it was fairly promptly there was a slight delay but nothing significant. So, the complaints that Ms B submitted in August 2020, September 2020 and January 2021 did not complete the complaints process until May 2022. There were some significant delays in completing this process and this caused injustice to Ms B in the form of avoidable distress and frustration.

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Agreed action

59. When we recommend a remedy we try to remedy the injustice caused to the complainant by the fault we have identified. The Ombudsman’s guidance on remedies states:
• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault because we cannot put the complainant in the position they would have been in if the fault had not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration;
• a remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1000 may be paid. Exceptionally, we may recommend more than this.
60. To remedy the injustice caused by the fault, the Council has agreed to take the following steps within one month of the final decision:
• apologise to Ms B;
• pay her £1500 to recognise the distress caused by the upset, uncertainty and lost opportunity. This payment is higher than we would usually recommend because the distress was, and is, exceptional. Ms B will never get a proper explanation for the injuries C sustained. This, in itself, is exceptionally distressing for her. It also means she has lost confidence in the service. She has not been able to access overnight respite care which C clearly needs because it is the only local provider and Ms B does not feel able to use it again;
• pay an additional £250 to recognise the frustration caused by the delays in handling her complaint; and
• ensure that suitable overnight respite care is in place for C as soon as it becomes available.
61. The Council should also tell us within three months of the final decision what it has done to ensure it meets the timescales at each stage of the children’s statutory complaints procedure.
62. The Council should continue its efforts to identify and arrange suitable overnight respite care for C as soon as possible. It should continue searching for a suitable provider and take the agreed action to improve respite provision in its area.
63. I have not made any recommendations for service improvements to address the wider issues raised by this complaint. The Council has already identified the necessary service improvements in the complaints process and I am satisfied it is addressing this. Paragraph 53 explains what it has done.

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Final decision

64. I have completed the investigation. The Council was at fault and this caused injustice to Ms B. The Council accepted it was at fault when it investigated Ms B’s complaint under the statutory children’s complaints procedure. It offered Ms B a financial remedy then and identified action it could take to improve future service provision. The Council has now agreed to provide an improved remedy to Ms B to recognise the significant injustice caused by its fault.

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Investigator's decision on behalf of the Ombudsman