Summary: Mrs X complained the Council failed to carry out agreed actions following the conclusion of its investigation under the statutory children’s complaints procedure around a lack of social care support. The Council failed to carry out some of its agreed actions following the conclusion of the complaints process. It agreed to apologise and pay Mrs X £200 to acknowledge the distress and frustration this has caused her. In line with the agreed actions it agreed to hold a meeting with her without further delay to resolve her ongoing concerns about social care support for her and her children.

The complaint

1. Mrs X complained the Council failed to carry out the agreed recommendations following the conclusion of its investigation under the statutory children’s complaints procedure into a delay in providing support for her and her disabled children.
2. Mrs X said despite the fact the Council upheld all of her complaints, it failed to carry out the agreed actions and she is still without support.
3. Mrs X wants the Council to carry out the actions, as agreed following the conclusion statutory complaints process.

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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 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)
6. 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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How I considered this complaint

7. I spoke to Mrs X about her complaint and considered information she provided.
8. I considered the investigation records and the investigation reports and adjudication letters from the children’s statutory complaints procedure in relation to Mrs X’s complaint.
9. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

Children’s statutory complaints procedure

10. Section 26(3) of the Children Act (1989) says all functions of the Council under Part 3 of the Act may form the subject of a complaint under the statutory complaints procedure.
11. Complaint investigations under the statutory procedure consist of three stages:
• Stage 1: Staff within the service area complained about try to resolve the complaint. Councils have up to 20 working days to respond.
• Stage 2: An Investigating Officer (IO) and an Independent Person (IP) investigate the complaint. The IO writes a report which includes details of findings, conclusions and outcomes against each point of complaint (ie “upheld” or “not upheld”) and any recommendations to remedy injustice to the complainant.

Once the IO has finished the report, a senior manager should act as adjudicating officer. They will consider the complaints, the IO’s findings, conclusions, and recommendations, as well as any report from the IP, and the complainant’s desired outcomes. The adjudicating officer should write to the complainant with their decision on each complaint. Councils have up to 13 weeks to complete stage two of the process from the date of request.

• Stage 3: A review panel considers the complaint. Following the panel, the members write a report containing a brief summary of the representations and their recommendations for resolution of the issues (The Children Act 1989 Representations Procedure (England) Regulations 2006 19(2)). 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.
3. Unless there is evidence of fault in the investigation process, the Ombudsman will not usually re-investigate a complaint which has been through the full procedure. This is because a properly conducted investigation is independent and robust. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

Assessment of need

13. 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 when they are “unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority”.
14. The expectation of the statutory guidance ‘Working together to safeguard children’ is that an assessment of a child which identifies significant needs will generally lead to the provision of services. However, 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.
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. If a council is satisfied it is ‘necessary’ to provide support services under section 2 of the Chronically Sick and Disabled Persons Act 1970 (CSDPA) then services must be provided regardless of the council’s resources.

Parent carer’s assessment

17. The Children Act 1989 places specific duties on councils to assess the needs of carers with parental responsibility for disabled children as well as young carers. Councils have an obligation to assess parent carers on the ‘appearance of need’ (Children Act 1989, section 17ZD/E), or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.

Education, Health and Care plan (EHC) plan

18. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)

The SEND Tribunal

19. Certain SEN decisions have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
20. Some of the decisions which are appealable, and we would not usually investigate, include the content of a plan and the named placement.

What happened

21. Mrs X lives with her husband Mr X and has four children. This complaint is in relation to two of her children (F and G), both of whom have special educational needs (SEN) and disabilities and about a lack of support for both her and Mr X as their carers.
22. Between 2019 and 2021 Mrs X said she had requested support from the Council for her children and her. Mrs X says the Council told her she was not entitled to a Section 17 assessment because it had no safeguarding concerns. Mrs X says the Council eventually carried out an assessment however it was brief and did not provide any outcomes or recommendations for support. Mrs X said the Council had also refused to carry out a parent carers needs assessment.
23. Mrs X says the Council continuously refused to carry out a parent carers assessment and failed to carry out a full, detailed section 17 needs assessment for F and G. She said this impacted on the level and nature of support provided to F and G and meant she has also missed out on support as their carer.
24. Mrs X complained to the Council in early 2021. Following a stage 1 response it decided to investigate Mrs X’s concerns at stage 2 of the statutory children’s complaints procedure. The Council began the stage 2 investigation in June 2021 and investigated seven complaints. The investigating officer completed their report in October 2021 and made the following findings.
• Complaint 1 – The Council regularly blocked Mr and Mrs X from accessing a detailed section 17 assessment and failed to provide them with a parent carers assessment as part of the section 17 assessment.
• Finding – The Council partly upheld this complaint. It said there was unnecessary delay completing both a carers assessment and section 17 assessment of the children.
• Complaint 2 – The Council failed to follow policy when it made the decision to, transfer the case to another social worker.
• Finding – The IO found there was no policy for the transfer or reallocation of cases between social workers. The IO was unable to make a finding due to not being able to interview the team manager in place at the time.
• Complaint 3 – The Council failed to effectively communicate with Mr and Mrs X which impacted on the level of service provided to them.
• Finding – The IO largely agreed with the stage 1 response which found evidence staff regularly communicated with Mrs X although perhaps not in the timescales she wished. The IO found was unable to make a finding as they were unable to interview the team manager in place at the time.
• Complaint 4 – The Council discriminated against Mr X by wrongly accusing him of domestic abuse.
• Finding – The IO did not uphold this complaint as they were unable to find any evidence of anybody accusing Mr X of domestic abuse. It said social workers appropriately explored whether children might have been at risk of such abuse.
• Complaint 5 – The Council victimised Mrs X by wrongly accusing her of needing therapy.
• Finding – The IO was unable to make a finding due to being a conversation between Mrs X and the social worker with nothing to corroborate Mrs X’s recollection.
• Complaint 6 – The personal budget in place for the children’s Learning Disability Nurse (LDN) was cut and the Council has refused to reinstate it.
• Finding – The IO did not uphold this complaint. They found the evidence shows a LDN was commissioned between 2019 and 2020 for a time limited piece of work which they completed in early 2021. It said there was no personal budget in place as it was paid for by the Council. Records from a Child in Need meeting show professionals considered the LDN report. They decided other professionals could follow up on recommendations rather than extend the LDN involvement.
• Complaint 7 – Children’s social care did not take an active part in the EHC plan process which mean he ended up with educational provision which did not suit their needs.
• Finding – The IO failed to make a finding but said there were only a small amount of records showing social care involvement in the EHC plan process.
25. The IO recommended the Council apologise to Mrs X for the shortcomings in assessing her needs. It recommended the Council be mindful in how it communicates with Mrs X going forward and to consider incorporating how it manages social worker handovers/reallocations into a policy.
26. The Council wrote to Mrs X with its stage 2 adjudication letter in December 2021 and agreed with the stage 2 investigation findings and recommendations.
27. Mrs X was unhappy with the stage 2 investigation and in March 2022 asked the Council to progress to a stage 3 panel. Mrs X says she still does not have any outcomes from the carers needs assessment and Early Help outcomes from the children’s Section 17 assessments have not been put in place. She remained unhappy about the LDN funding the IO’s failure to interview relevant staff such as the team manager at the time.
28. The stage 3 panel meeting took place in June 2022. The stage 3 panel found the following.
• Complaint 1 – The stage 3 panel fully upheld this. It found Mrs X had not been given any outcome of a parent carers needs assessment and the panel was unsure whether one had in face been completed at all. The panel found the Council used both ‘brief’ and ‘full’ to describe different ways of carrying out section 17 assessment which was confusing. The panel said the children should have had a full assessment in the first place and the delay in doing so impacted on the family.
• Complaint 2 – The stage 3 panel was unable to make a finding but noted there was a good practice document in place and therefore made a recommendation with regards to this (set out at paragraph 29 below).
• Complaint 3 – The panel partly upheld this complaint. It found there was evidence of poor communication with staff handovers and in identifying Mrs X’s specific communication needs. It also identified poor record keeping.
• Complaint 4 – The panel did not make a finding on this as there is no evidence or corroboration that Mr X was accused of domestic abuse.
• Complaint 5 – The panel did not make a finding for the same reasons as the stage 2 IO.
• Complaint 6 – The panel partly upheld this complaint. It said there was unclear evidence about whether the LDN was funded by a personal budget or by the Council. It found however Mrs X was uncertain why funding had stopped and there is no evidence of the LDN recommendations being followed up.
• Complaint 7 – The panel partly upheld this due to poor records of social care’s contribution to the EHC plan process.
29. The stage 3 panel made 14 recommendations. I have set out the relevant recommendations to this complaint below:
• review how the Council uses the words ‘brief’ and ‘full’ when it carries out section 17 assessments;
• send Mrs X a copy of her parent carers needs assessment including all outcomes within four weeks;
• review its policy and practice on how it handles staff handovers in similar cases;
• carry out staff training around parent carers needs assessments;
• review the adequacy of information provided around parent carer needs assessments;
• offer Mrs X a meeting with a senior officer within six weeks to discuss the LDN funding and the personal budget around this;
• review its record keeping; and
• review the involvement of social workers in the EHC plan process.
30. The Council wrote to Mrs X with its stage 3 adjudication letter. The Council accepted the stage 3 findings and recommendations.
31. Following the adjudication letter the Council wrote to Mrs X in August 2022 and offered her £1800. This consisted of a payment of £1500 to recognise the impact of the failings the complaint had identified and £300 to acknowledge the delays in completing the complaints process. The Council later increased this offer to £2000 which Mrs X accepted.
32. In January 2023 Mrs X complained to us. Mrs X said she was happy with the stage 2 investigation and the outcome of the stage 3 panel. However, Mrs X said the Council had failed to carry out some of the recommendations. Specifically, Mrs X says the Council failed to arrange a meeting with a senior officer which means the issue around the LDN funding is still not resolved. Mrs X said she had received a parent carers needs assessment however it does not set out the outcomes or identify what support Mrs X is entitled to. This means she is still without any meaningful support or respite and has not had any short breaks in the last 18 months.

The Council’s response to us

33. We asked the Council to explain how it had carried out the recommendations following the conclusion of the complaints procedure.
34. The Council has a new section 17 assessment document which includes a prompt for staff to carry out a parent carers needs assessment. The Council has undertaken staff training around parent carers needs assessments on a three monthly basis and include the topic at team meetings. The Council has a policy for case transfers between staff which is on its website. It has also formally reminded staff about clear record keeping. The Council said it has identified gaps in the adequacy of provision of information around parent carer needs assessments and it is working with the Family information Service to improve this.
35. The Council said it carried out a new parent carers needs assessment with Mrs X and provided her with a copy. It said it offered Mrs X a meeting in August 2022 to discuss the LDN funding however the meeting did not take place.
36. The Council has explained actions it has taken in regards to its review of social workers involvement in the EHC plan process. This resulted in an agreement for social care involvement during the EHC needs assessment and to contribute to the annual review process.
37. The Council confirmed Mrs X had accepted a payment of £2000 to recognise the injustice caused by the faults found and for delays in completing the complaints procedure.

My findings

38. It is not our role to reinvestigate matters which have already been subject to a properly conducted and independent investigation. To do so would not be a good use of public resources. Instead, our role is to consider the following.
• Was the investigation properly conducted and are the conclusions evidence based. If not, would the Ombudsman reach a different view based on the information available to us?
• Did the Council offer a proportionate remedy for the injustice caused by fault? If not, would the Ombudsman recommend any further remedial action?
• Has the Council fully implemented any agreed remedy? If not, has the delay caused any further injustice to the complainant?
39. Although there were delays in the complaints process, which the Council accepts, the stage 2 investigation and stage 3 panel review were properly conducted. Mrs X was happy with the outcome and recommendations. She has accepted a symbolic payment from the Council of £2000 which acknowledges the impact of the failings in its service and the complaints delays. This is an appropriate symbolic payment so I have not made a further recommendation to remedy that fault below.
40. Mrs X however has remained unhappy with how the Council has carried out some of the recommendations. After reviewing the Council’s response to us I agree the Council has failed to carry out some of the agreed actions following the stage 3 panel.
• The Council has provided us with a copy of the updated parent carers needs assessment. This assessment outlines Mrs X’s needs and the support she would like. However, the assessment does not have any outcomes and does not explain what, if any support Mrs X is entitled to. That is fault.
• The Council agreed to review the adequacy of information provided to parents around parent carer needs assessments. The Council said this review identified gaps in information which require further work. There is no evidence the Council has carried out further work to resolve these gaps, despite agreeing to this recommendation in August 2022. This is fault.
• The Council agreed to arrange a meeting with Mrs X to discuss the LDN funding. Mrs X says this has not taken place and there is no evidence the Council has made sufficient effort to arrange the meeting. That is fault.
• The Council agreed to review the involvement of social workers in the EHC plan process. It told us relevant officers met to discuss this action however, there is no evidence of what was discussed or any outcomes agreed. Therefore, on balance the Council has not completed the action as agreed which is fault.

Ongoing injustice

41. Despite carrying out a robust and satisfactory complaints investigation the Council has not completed some of the agreed actions following the stage 3 panel. This means Mrs X is still without any outcomes from her parent carers needs assessment, despite the assessment identifying what support might be useful. Mrs X is also no further forward with the LDN funding after the Council has failed to arrange a suitable date to meet with Mrs X. This meeting would likely have been a good opportunity to discuss and resolve all of Mrs X’s ongoing concerns.

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Agreed action

42. Within one month of the final decision the Council agreed to take the following action.
1. Apologise to Mrs X and pay her £200 to acknowledge the distress and frustration caused to her by the failure to complete some of the agreed actions following the conclusion of the statutory children’s complaints procedure.
2. Arrange and hold a meeting with Mrs X. This meeting should be used to discuss the LDN funding, the outcomes of the parent carers needs assessment and any other issues Mrs X deems unresolved since the conclusion of the complaints procedure.
43. Within two months of the final decision the Council will complete its review of the adequacy of information provided to parents around parent carers needs assessments. It should provide us with an action plan of how it intends to resolve the gaps in information the review has identified.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I completed this investigation. I found fault and the Council agreed to my recommendations remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman