Summary: Mr X complained the Council carried out a flawed assessment of J’s needs, wrongly deciding J was ineligible for support from the Council’s disabled children’s team. In doing so, Mr X said the Council reneged on a previous commitment to keep J open to services long-term. Mr X also complained the Council failed to conduct the children’s statutory complaints procedure properly and did not address the substance of his complaint. We have found the Council at fault for a delay in completing the second stage of the statutory complaints procedure. The Council had offered a remedy for the injustice caused, which we consider suitable. We have not found the Council at fault for how it considered Mr X’s complaint as part of the statutory complaints procedure. We will therefore not consider the substantive matter.

The complaint

1. Mr X complained the Council carried out a flawed assessment of his child, J, which resulted in the Council deciding J was ineligible for support from the Council’s disabled children’s team. Mr X said because of the flawed assessment, the Council withdrew services that were vital for J’s support and overall wellbeing. Mr X also said the Council reneged on an agreement to keep J open to support from the disabled children’s team long-term.
2. Mr X complained the Council failed to correctly follow the children’s statutory complaints procedure, or properly deal with his complaint.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I discussed the complaint with Mr X and considered information he provided.
7. I considered information the Council provided about the complaint.
8. Mr X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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Relevant legislation, guidance and policy

Assessment

10. The Children Act 1989, section 17, 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. 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 is dependent 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.

The Council’s eligibility criteria

12. When assessing eligibility for support, the Council considers the evidence it has against a set of criteria, which it publishes online. The Council will decide if the available evidence shows the impact is mild, moderate, severe, or profound. Where an assessment determines a mild or moderate impact, the Council will signpost to other agencies or services it believes could meet the child or young person’s needs.
13. The relevant criteria in this case are those of mobility, physical health, and behaviour and social interaction.

Children’s statutory complaints procedure

14. 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. We also published practitioner guidance on the procedures, setting out our expectations.
15. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
16. 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 investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
17. Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
18. The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days where required.
19. 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 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.

The Ombudsman’s approach to investigating complaints made under the statutory procedure

20. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
21. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.

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What I found

Key events

22. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
23. Mr X’s child, referred to as J in this statement, has been known to the Council’s disabled children’s team since 2019/20. J has been open to support from the team since 2020/21. The team’s name has since changed, but I refer to it as the disabled children’s team for consistency.
24. J has several physical and mental health diagnoses. According to a summary compiled by the Council, these include:
• Pain disorder;
• Anxiety disorder;
• Autistic Spectrum Disorder (ASD);
• Asthma; and
• Reduced mobility following trauma caused in an accident.
25. In July 2023, the Council reassessed J’s needs, considering whether he remained eligible for support from the disabled children’s team. J’s social worker (SW1), completed the assessment for the Council, considering J’s needs against the Council’s eligibility criteria. In all categories, the Council decided J showed mild-to-moderate levels of need. This meant J was no longer eligible for support from its disabled children’s team. It recommended ending the direct payment package in place and signposting to other services it believed could meet J’s needs.
26. Mr X complained to the Council:
1. Mr X complained the Council had reneged on a historic written agreement to keep J opened to the disabled children’s team until he turned 16.
2. Mr X said the assessment was inaccurate. He said SW1 had not met with J and had misrepresented J’s views. He also said the Council had failed to share the assessment for over a month, despite requests.
3. Mr X said the Council had failed to complete assessments in the previous two years.
4. Mr X wanted the Council to reassess J and keep him open to the disabled children’s team until he turned 16. He also wanted the Council to dismiss specific members of staff.
27. In August 2023, Mr X told SW1 that J’s consultant (Dr Z) would be sending further evidence that SW1 should consider. Mr X also questioned SW1’s qualifications and experience. Dr Z sent the Council an updated report, setting out J’s main disabilities and their impact on J. Using the Council’s assessment criteria, Dr Z explained why he felt J’s needs presented as severe in some categories. Dr Z said the Council should keep J open to support from the disabled children’s team.
28. The Council responded to Mr X’s stage one complaint:
1. The Council said there was no evidence it had provided a written commitment to keep J open to its disabled children’s team. It said if Mr X had a copy of this agreement, it would investigate this further.
2. The Council said it had believed it would be better to discuss the outcome of the assessment in person. It accepted Mr X may have preferred an advance copy of the assessment. It apologised for not providing one.
3. The Council said the assessment was informed by the evidence available. It said it would consider any more medical evidence provided.
4. The Council set out details of SW1’s efforts to engage with J. It said if J clarified where he felt the assessment misrepresented his views, the Council could consider this.
5. The Council accepted it had not completed updated assessments over previous years, for which it apologised. It said other reviews had taken place, meaning the support package had remained suitable throughout.
29. In September 2023, SW1 completed another assessment of J’s needs for the Council. The assessment referred to Dr Z’s submission, with SW1 including Dr Z’s description of J’s needs under the “health” section of the assessment. There were also minor amendments to the “mobility” and “physical health” analysis, though the outcomes remained unchanged. The “behaviour and social interaction” criterion was updated from mild to moderate. Summarised:
1. Dr Z had asserted that:
1. J’s mobility needs were severe. J could not walk following an accident, as he had only one functioning leg. J primarily mobilised using his wheelchair, needing support over anything other than short distances. J could use his crutches and one functioning leg over short distances.
2. J’s physical health needs were severe. His pain disorder impacted his quality of life, engagement with normal activities and his mental health, leading to further pain. This was a daily issue, unless carefully managed through support.
3. J’s behavioural and social interaction needs were severe. J’s pain, combined with his ASD and anxiety, meant his behaviour was challenging. Dr Z said J received specialist support from his parents, requiring full-time support at home and at school. J suffered from mood swings and feelings of depression. Dr Z said the impact would be worse but for the effort of J’s parents.
2. J’s social worker concluded:
1. J’s mobility needs were moderate. This was because J could mobilise with crutches at home and over short distances. J used his wheelchair at school and in the community, but could complete a standing transfer from the wheelchair to a chair independently, as well as go up and down stairs. J did not use his wheelchair all the time.
2. J’s physical needs were moderate. J experienced intermittent pain, but there were management strategies in place. Dr Z said J experienced constant fluctuating pain, with intermittent episodes of severe pain. SW1 said J was categorised as moderate because the pain fluctuated, but J could still regularly attend school and go out with family when the pain was not severe.
3. J’s behavioural and social interaction needs were moderate, updated from mild. Although J had an ASD diagnosis, his behaviour was mostly settled at home and school, and he enjoyed family days out. SW1 noted J was a teenager and would display behaviours expected of that age. They said J’s school or parents had not made the Council aware of any challenging behaviours that would suggest a risk of family breakdown. SW1 said J’s lack of social opportunities outside of school could be met by attending clubs and activities in the community.
30. Overall, the Council kept its view that J’s needs were mild-to-moderate, meaning J was not eligible for support from the disabled children’s team.
31. Mr X asked the Council to escalate his complaint. He said the assessments were wrong. He said SW1 was not competent to conduct the assessment and had misapplied the assessment criteria. He also reiterated points made at stage one, while highlighting some new concerns about the conduct of the procedure.
32. The Council appointed an Investigating Officer (IO) and Independent Person (IP) to conduct and oversee the investigation.
33. In February 2024, the IO issued their report, setting out their findings, conclusions and recommendations. The IO investigated 18 separate heads of complaint, many of which overlapped. The IO upheld one complaint, partially upheld two complaints, and did not uphold 13. The IP also issued a report. The investigation did not uphold Mr X’s complaints about the assessment procedure, or SW1.
34. The Council issued its adjudicating response, supporting the findings and conclusions of the IO and IP. It accepted some delay in completing stage two of the statutory procedure. It offered Mr X a meeting to discuss the complaint.
35. Mr X escalated his complaint to the third stage of the statutory procedure.
36. In April 2024, the review panel considered Mr X’s escalated complaint. Present at the meeting were the IO, IP, and representatives from the Council. Mr X did not attend, citing caring commitments for J. Mr X provided written submissions. The panel noted 18 heads of complaint, but said these related to three substantive issues:
• The Council’s assessment of J’s needs;
• The Council reneging on an agreement to keep J open to services; and
• The conduct of these matters, including the statutory complaints procedure.
37. The panel considered Mr X’s submission and explored these matters with those in attendance. Following the hearing, the panel wrote to Mr X with the outcome of its considerations. In sum, the panel agreed with the stage two investigation conclusions and recommendations. It made no further recommendations. The Council sent its final response to Mr X, confirming it had considered the panel’s findings and agreed with its conclusions.

Analysis

Statutory procedure - timeliness

38. Paragraphs 14 - 19 set out the timescales for each part of the children’s statutory complaints procedure.
39. Mr X’s complaint was registered on 27 June 2023. The Council responded on 24 August 2023, 20 working days later. This is within the timescales set out in statutory guidance. There was no delay by the Council at stage one of the procedure.
40. Mr X escalated his complaint to stage two of the statutory procedure on 24 September 2023. The Council issued its adjudicating response on 21 February 2024. This response was around 40 working days overdue.
41. Mr X escalated his complaint to the review panel on 21 February 2024. The panel hearing took place on 4 April 2024, 30 working days later. The Council issued its final response on 17 April 2024, nine working days later. The Council conducted stage three of the statutory complaints procedure without delay.
42. The Council’s delay in completing the second stage of the statutory complaints procedure was fault, which the Council accepted in its adjudicating response. The Council apologised and offered a financial remedy of £150 to recognise the avoidable frustration this delay caused. This is within the range of financial remedies set out in the Ombudsman’s Guidance on Remedies for delays in the statutory complaints procedure. The Council’s proposed remedy is suitable for the injustice caused.

Substantive complaint

43. Mr X’s substantive complaint is set out in paragraphs 1 and 2. Mr X told the Ombudsman these were the key issues, from which everything else followed.
44. Paragraphs 20 and 21 set out the Ombudsman’s approach to investigating complaints already considered through the statutory procedure. I have considered whether there were any procedural flaws in the investigation at stages two and three which may call into question the overall findings.

Stage two investigation

45. The Council appointed an IO and IP to independently investigate Mr X’s stage two complaint. Both produced detailed reports about the investigation.
46. On the assessment:
1. The IO and IP found SW1 was competent to complete the assessment and had accounted for all relevant information when making their decision. This included Dr Z’s submission. The IO said SW1 had mapped their assessment against the criteria for support.
2. The IO and IP found SW1’s manager, Officer P, and their manager, Officer Q, both had oversight of the decision. This oversight was not clearly documented in records; however, the IO and IP interviewed Officer P and Officer Q. Both officers confirmed they had seen SW1’s decision before it was made and agreed with it. The decision also required authorisation by Officer P, which Officer P provided. The IP found the decision was therefore taken by the team, not just by SW1.
3. The IO and IP also interviewed a Senior Practitioner (SP1), who had been involved with J in previous years. SP1 told the IP they were not certain J would meet the criteria for support.
4. The IO and IP interviewed SW2, the social worker whom Mr X alleged had committed in writing to keeping J open to services. SW2 said they had not written such a letter, and could not locate any correspondence to this effect. SW2 also said nobody would commit to keeping an individual open to services indefinitely without assessment. The IP and IO said they could not locate any record of the letter on the Council’s records.
47. I recognise Mr X strongly disagrees with the assessment outcome and with the findings of the stage two investigation. While fully recognising this, the evidence available shows the stage two investigation was completed in accordance with the relevant statutory guidance. The reports make clear the IO and IP understood the complaint. They interviewed key individuals and considered relevant documents. Where they required clarification or identified gaps in understanding, they obtained relevant testimony from suitable individuals. The investigation obtained a consensus as to the conduct and outcome of the assessment from multiple social care professionals. Senior officers confirmed their oversight of, and agreement with, the assessment itself. The investigation addressed the points of complaint and drew independent conclusions with reference to the evidence obtained.
48. Because of this, I have not identified any concerns with the conduct of the investigation and have not found fault. I could not therefore criticise the judgements reached during the stage two investigation procedure.
49. The Council addressed the IO and IP’s findings in its adjudication letter and set out the actions it would take. I have not found the Council at fault for how it responded to the IO and IP’s investigation.

Stage three review panel

50. The review panel probed the key points further at the panel hearing. Minutes from the panel hearing show:
1. The IO told the panel they believed SW1 had been competent to complete the assessment. The panel heard SW1 had been clear about what they believed J could and could not achieve, accepting the family had different views.
2. The IO reiterated that Officer P and Officer Q had oversight of the decision and agreed with it, which they confirmed in interview. The IO said it was not usual to have oversight from both, so there had been more support than usual for SW1, rather than less. The IO and IP both told the panel it would have been helpful if this oversight had been better documented.
3. The review panel probed how SW1 and Dr Z could reach different views when applying the same criteria. The panel also sought justification for why the assessment did not substantively change after Dr Z provided medical evidence:
1. Those present discussed the differences in professional views, noting the application of both social care and medical models.
2. The panel heard the social care model involved gathering evidence from a broad range of sources. This included medical evidence, J’s EHC Plan, and other professional views, such as that from J’s school. This evidence was then triangulated to reach a conclusion. In contrast, the medical model would likely be more prescriptive and involve less triangulation from other sources.
3. The panel discussed whether loss of mobility following an accident could improve over time, in contrast with other conditions that would require ongoing therapy. The panel noted that J appeared to be showing some signs of improvement with his mobility.
4. The panel heard there was a clear difference of opinion between specialisms. The IP told the panel they could not decide who was correct, but they believed the social care assessment had been completed correctly.
5. The panel noted Mr X had declined to provide a copy of the letter he said SW2 had sent, concerning J’s ongoing access to services. The panel said Mr X said he would provide this to the Ombudsman. In the absence of this letter, the panel did not consider this point further.
51. Mr X later told the Ombudsman he had been unable to locate the letter from SW2.
52. I again recognise Mr X strongly disagrees with the panel’s conclusions. However, the evidence shows the panel was conducted in accordance with the requirements of the statutory guidance. The minutes show the panel understood the complaint, asking relevant questions of appropriate individuals. The panel specifically queried how the assessment criteria could result in varied outcomes, when applied by different specialisms. The panel concluded this was due to the application of different professional frameworks, in this case social care and medical, which used different methodologies. The panel noted different professional views were not uncommon, particularly from different specialisms, thereby recognising that a range of assessment outcomes would be possible. The panel addressed each part of Mr X’s complaint in its response and explained its conclusions, drawing on the documents reviewed and testimony heard.
53. Because of this, I have not identified any concerns with the conduct of the panel hearing at stage three and have not found fault. I could not therefore criticise the panel’s conclusions.
54. The Council fully addressed the panel’s findings in its final response. I have not found the Council at fault for how it addressed the panel’s findings.

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Agreed action

55. Within four weeks of the final decision being issued, the Council has agreed to:
1. Re-offer Mr X the financial remedy of £150 for the delay at stage two of the statutory complaints procedure, if it has not done so already.
56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. I have completed my investigation with a finding of fault, causing injustice. The Council’s proposed remedy suitably addresses that injustice. No further action is needed from the Ombudsman.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman