Summary: The Council has acknowledged that it took too long to consider Mrs B’s request for changes to respite care when she could not recruit a personal assistant. It has apologised to her, and agreed to her request. It has backdated payments to cover care Mrs B funded herself, and offered to pay Mrs B in recognition of the impact on her. In response to my recommendation, the Council has agreed to also make a further payment and remind staff of the correct process.

The complaint

1. Mrs B complains about how the Council dealt with her son K’s respite care. In particular Mrs B complains that the Council:
• Failed to provide respite care for K in accordance with his assessed needs;
• Told Mrs B that her request to use direct payments for overnight respite would go to a funding panel, when it did not;
• Failed to provide an appropriate remedy to the fault identified by the statutory complaints process; and
• Took too long to make an offer of payment in respect of respite Mrs B had paid for, and to resolve the lack of respite.
2. Mrs B says the Council could have resolved this much sooner. She was left without respite and in addition to this, she found the complaints process itself stressful and exhausting.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered the information provided by Mrs B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered their comments before issuing my final decision.

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What I found

The law and guidance

Disabled children

6. Parents/carers of disabled children can ask for a direct payment to meet the needs of the child. The council must carry out an assessment and direct payments must be sufficient to meet the assessed needs. Direct payments must be used by the parent/carer to meet the child’s needs
7. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need. A child is in need if:
• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.
8. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare.

The statutory process for complaints about children’s social care

9. 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.
10. The first stage of the procedure is local resolution. 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.
11. 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.

What happened

12. Mrs B’s son, K is autistic and has a condition that affects his speech and language. The Council considers K vulnerable due to his disability and so he is classed as a Child in Need. He has received a care package from the Council since 2019 for respite care. The Council’s disability resource panel (the Panel) reviews the package annually to make sure it still meets K’s needs. If changes are needed between Panel meetings, a senior manager can authorise these to be ratified at a later meeting.
13. In 2020, the Council agreed to make direct payments to Mrs B. She was to use this to pay for a personal assistant to provide respite care for her son. But Mrs B could not find an appropriate personal assistant to care for K and so she asked to use the funding to pay for overnight stays at K’s special school. The Council made enquiries of the school, but did not explain clearly and the school misunderstood that Mrs B wanted her child to board at the school.
14. By April 2021, Mrs B had found a support worker for K but it was not working out well. Mrs B asked again if the money could be used for K to stay overnight at his school for respite care. The Council said that the matter needed to go back to its funding panel for agreement. Mrs B asked for an update in May and June 2021. The Council’s Social Worker (SW) continued with the required visits but did not update Mrs B. It was clear in July 2021, that the SW still had not taken the matter to the Panel for approval.
15. In July Mrs B made a formal complaint that the Council had failed to consider her request for the respite care to be used for overnight stays. The Panel finally considered K’s funding for this in August 2021, but the case was presented by a new SW who had not met the family and the Panel was not asked to consider overnight respite care at school. The Panel decided that the respite care could be provided by the Council’s in-house home care team.
16. However, the team could not find a personal assistant to provide respite to K’s family. A senior manager agreed that this could be met by an agency, but again there was nobody available. The Council reinstated the direct payments for respite care in January 2022, but Mrs B still could not find an appropriate support worker to allow the respite to go ahead.
17. When Mrs B made her complaint in July 2021, she also asked that the Council assess her younger child’s needs. The Council did not do this until January 2022.
18. The Council considered Mrs B’s complaint under the statutory process. She was not satisfied with the Council’s initial response. Mrs B says it did not tell her how to escalate her complaint and she asked it to consider this at stage two of the process, which is an independent investigation. At stage two the Council found:
• The Council took too long to consider Mrs B’s request for an overnight respite stay. Its report to the Panel did not accurately set out her situation, and did not consider the impact of the lack of respite on Mrs B’s younger child who also had special needs.
• The Panel had not considered the issue of respite care as promised by the SW and this was refused by a manager.
• This meant that Mrs B had no respite for 18 months and of that, she had 7 months without a decision on funding.
• The Council took too long to assess Mrs B’s younger child, and left the family unsupported.
• The original SW had left the Council and so the Stage two investigator had not investigated whether he had misled Mrs B about the funding Panel.
• The Council should have considered the one night of respite care at school as a cost-effective way to meet Mrs B’s respite needs, at a place that K was already happy to stay.
19. The Council considered the investigator’s report and largely agreed with the findings, and apologised for the fault. Mrs B asked the Council to arrange for a stage 3 panel to consider the complaint.
20. The stage three complaint panel met in June and it found:
• The stage two investigation had found that although the Council had not visited the family until January 2022, the SW had contacted the family, had been off sick and on leave, and the service had to manage its relationship with agency workers. However, the panel found that as K was a child in need, the Council had a duty to visit the child every 12 weeks and so it upheld this complaint.
• It could not make a finding as to whether the SW had told Mrs B untruths about the funding panel.
• The assessment of Mrs B’s younger child was now complete.
• It asked the Council to consider paying Mrs B £65 per week from April 2021, to take account that she paid for weekly overnight respite at K’s school.
• The Council was in the process of updating its assessment of K’s needs and would consider what respite package would meet these.
• It had not sent her the Child in Need meeting notes, and should do so.
21. The Council broadly agreed with the complaint panel’s findings and apologised to Mrs B for the fault identified. It said that the Council would consider the payment in recognition of the respite care she had paid for, and the reinstatement of K’s respite ongoing, at its next Panel. The Council said it would let Mrs B know the outcome of that on 14 July 2022. It also offered to pay to Mrs B, £150 in recognition of the time and trouble Mrs B had been put to, £150 in recognition of the distress caused to her, and £150 in recognition of the faults identified.
22. The Council met with Mrs B on 20 July to discuss the respite needs and the possibility of overnight stays at K’s school. In August 2022, it agreed that K could have respite by staying overnight at school.
23. Mrs B has asked that the respite costs of £2244 be reimbursed to her and that her distress and time be properly compensated.
24. The Council had not made a final offer of a payment to her in recognition of the respite she had paid for while the referral to the funding panel had been delayed. In October 2022, Mrs B complained to the Ombudsman.
25. The Council wrote to Mrs B on 28 October. It decided that it would make payment in recognition of the respite Mrs B paid for. It offered to pay £1700 which is the cost of respite backdated to August 2021 up until January 2022.
26. The Council has not offered Mrs B a payment for respite from January 2022 to April 2022, because Mrs B had direct payments for that period and so could have employed a personal assistant. The Council has not backdated the payment to April 2021 as recommended by the Panel and it did not explain its reasons.

Was there fault by the Council causing injustice to Mrs B and her children?

27. The Council has accepted fault in how it handled Mrs B’s requests to change K’s respite care. It had not always met its duty to visit K, as a Child in Need. It took too long to consider and approve her request to use direct payments to fund overnight respite care. It has since approved that request and backdated payments and offered Mrs B a payment totalling £450 in recognition of the impact on her.
28. Mrs B disagrees with the period covered by backdated payments and the Council’s finding that it could not say whether a SW had lied to her about putting her request to the funding Panel. Mrs B also says the offer of £450 does not properly compensate for the impact of lost respite on her.
29. The need for respite care is established and so not getting this care would impact on Mrs B and her family. We ask councils to make symbolic payments to recognise the effects of injustice, such as distress, frustration and uncertainty. The Council’s offer of £450 is in line with the Ombudsman’s guidance on appropriate remedies. For this reason, I have not recommended that the Council increase this offer.
30. I have read the case notes and considered the information from both parties. The Council was aware from April 2021 that Mrs B had not been able to recruit a personal assistant to provide respite care. The complaints panel recommended the Council back date the payments to this date. However, the Council has only backdated payments to August 2021, when it decided that respite could be provided by its home care team, but was unable to fulfil this.
31. The Council has not given reasons for not backdating payments to April 2021. I appreciate that K had no assessed need to stay overnight at school, however this is still the case and the Council has allowed this to solve the problem of arranging the respite care he is entitled to. The rationale for backdating payments to August 2021 would allow the Council to backdate further to April 2021, and it should do so on the same basis.
32. The Council has not covered payments from January 2022 to April 2022. At this time Mrs B was paid direct payments for her to employ a personal assistant. Again there were difficulties with recruiting this. However, it does seem that for most of this period there was a personal assistant in place. And so I have not proposed that the Council make a payment in respect of lost respite care from January to April 2022.
33. I have also looked at how long it took the Council to arrive at its decision to allow respite via overnight stays at school, and to backdate payments. The Council agreed that it would reach its decision by July 2022. It met with Mrs B to discuss respite care in July 2022 and agreed this in the August. Although it was later than expected, it was right to meet with Mrs B first and overall there was no significant delay.
34. The Council took until October 2022 to offer Mrs B backdated payments. The case notes suggest that the Council was gathering evidence of the payments Mrs B had made and there was some administrative difficulty here. I accept that this could have been done more quickly, but there were some unexpected difficulties in getting all the information it needed, and so my view is there was no fault by the Council in the time it took to make its final offer to Mrs B.
35. Finally, I have looked at whether the SW misled Mrs B. The Council was unclear about the process for agreeing changes to the package. It did not need to go back to the funding Panel and overnight stays could have been agreed by a manager. Mrs B says the SW told her that they had referred the matter to the Panel when this had not happened. What happened here is not clear from the case notes and I am unlikely to be able to establish what the SW said by other means. In these situations, we consider whether on the balance of probabilities it is more likely than not that the SW misled Mrs B. However, in this case, I cannot reach a view. I do however agree with the complaints panel that the stage two investigation was best placed to establish what happened here.

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Agreed action

36. The Council has considered my recommendations and findings. It does not agree with all the findings, but has agreed to my recommendations in order to remedy Mrs B’s complaint. The Council has agreed to:
• Pay Mrs B the backdated payments for respite care from 1 April 2021 to 9 July 2021; and
• Share this decision with relevant staff and remind them of procedures for agreeing changes to care packages outside of the funding panel.
37. The Council says it has paid Mrs B £450 in recognition of the impact on her, and £1716 in respect of the missed respite care payments from 9 July 2021 to 21 January 2022. However, Mrs B says she did not receive these payments. The Council should therefore check its records and ensure these payments have been made.
38. The Council should provide us with evidence it has complied with the above actions within one month of this decision.

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Final decision

39. I have completed my investigation. There was fault causing injustice.

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Investigator's decision on behalf of the Ombudsman