Summary: Ms X complained the Council failed to or delayed in completing the recommendations made after it considered a complaint she made through the children’s statutory complaint procedure. The Council failed to carry out all the recommendations, which caused Ms X avoidable frustration and uncertainty and put her child at risk of harm. The Council will apologise to Ms X, make a payment for the injustice caused to her and her child and complete a review into its short breaks arrangements.

The complaint

1. Ms X complained the Council failed to and delayed in completing the recommendations made after it considered a complaint she made through the children’s statutory complaint procedure. Ms X said this caused her and her child to miss out on appropriate social care support and has caused her frustration and distress.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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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How I considered this complaint

5. Read the documents Ms X provided and discussed the complaint with her on the phone.
6. I considered the documents the Council sent in response to my enquiries
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Children’s statutory complaints procedures

The three-stage process

8. 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.
9. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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. However, we may 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.

Duty to safeguard and promote welfare (section 17)

15. 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.
16. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, 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.
17. Services which can be provided under section 2 of the CSDPA include:

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

What happened

18. This section sets out the key events in this case and is not intended to be a detailed chronology of everything that happened.
19. Ms X’s son Y has some disabilities which means he has additional needs. Y has challenging behaviours and attends a specialist school where he receives one-to-one support. Ms X looks after Y on her own. Y had short breaks in place in 2022 to provide respite to Ms X from her caring responsibilities. The Council paid Ms X money (direct payments) to arrange the short breaks provision for Y.
20. Ms X complained to the Council in February 2023 about the way it had reassessed the short break hours Y had been allocated and about how it had completed a carers assessment of her own needs.
21. The Council responded to Ms X’s complaint at stage one of the statutory children’s complaints procedure and did not uphold it. Ms X was dissatisfied and asked the Council to progress her complaint in March 2023.
22. The Council appointed an Investigating Officer (IO) and an Independent Person (IP). They met with Ms X in April and discussed the complaint. The IO set out the statement of complaint and Ms X agreed it in May 2022. There were nine points of complaint. Ms X complained:
1. the stage one complaint response from the Council was dismissive;
2. it delayed considering Ms X’s complaint;
3. it failed to present appropriate reports to the short breaks panel for proper consideration;
4. the carer’s assessment did not properly represent Ms X’s circumstances;
5. it failed to tell Ms X how the assessment was considered and how decision were made about her needs;
6. it failed to provide clear information and advice on short breaks and how they could be used;
7. it was not possible to book two-to-one care through the short breaks system;
8. the Council’s approach of having to use all the direct payments for short break hours to prove it was needed was unhelpful and did not understand complex needs and circumstances of families; and
9. it failed to consider an Occupational therapists (OT) report recommendations for support for Ms X to bath Y.
23. The IO considered all the available documentary evidence, interviewed key Council staff members, and Ms X. They completed the investigation in July 2023 and the IP agreed with the IO’s findings. The investigation upheld point b) that the Council delayed in completing the statutory complaint process by approximately three months, and partially upheld point f) that it gave contradictory information about using short breaks. It did not uphold the other seven elements of complaint. It did not uphold complaint i) because Ms X was about to move to a new property. The Council told the IO it would make adaptations to that property and would assess any additional support Y needed when the adaptations were agreed.
24. The IO recommended the Council should apologise for the faults identified and offer Ms X counselling or therapeutic intervention in relation to her frustrations at trying to be heard as a single parent.
25. The Council wrote an adjudication letter to Ms X in July. It agreed with the IO’s findings. It said it offered a full apology for the upheld and partially upheld complaints. It advised Ms X to speak with her GP to seek therapeutic support.
26. Ms X was dissatisfied with the Council’s response and asked it to consider her complaint at stage three in August 2023. Ms X again asked the Council for a stage three panel at the beginning of September.
27. The Council arranged a stage three panel meeting which considered Ms X’s complaint in November 2023. Ms X told the panel that her desired outcomes were for the Council to:
• increase her short breaks hours which had been reduced in August 2023;
• consider, agree and implement the recommendations made by an OT through its short breaks panel. The OT report had been completed two days in advance of the panel meeting; and
• provided her with compensation for the impact of the Councils faults.
28. The stage three panel considered Ms X’s representations, the IO and IP’s reports and gathered additional information it required. During its deliberations it considered several OT reports completed by different officers at different times. As part of the panel’s consideration it recorded the Council said it had received a new OT assessment on 28 November 2023. The Council told the panel it would consider this OT assessment at its short breaks panel on 7 December 2023 and then provide Ms X with a written response.
29. The panel decided it could not make a finding on complaint c) and did not consider point e) with Ms X’s agreement. It did not uphold points a), d) and i).
30. The panel upheld complaint f) that the Council provided contradictory information on short breaks, which had been previously partially upheld. It recorded the Council had decided in August 2023 to remove some of Y’s short breaks hours, but had failed to tell Mrs X that the funding remained in place until April 2024.
31. The panel upheld complaint g) about the flexibility of the short breaks system. It said short breaks could be inflexible and difficult to use which caused unnecessary stress and uncertainty to parents who were already dealing with the complex needs of their children. It set out 15 points of concerns with the short breaks system for the Council to consider.
32. The panel upheld point h) which was previously not upheld that the Council had a system where unused short break hours at the end of a period would be lost to the recipient.
33. The panel considered Ms X’s desired outcomes and said it supported her request for an increase in short breaks hours and the package the Council had removed in August 2023 to be reinstated. It also asked the Council to urgently provide an interim plan for Ms X to receive appropriate support in line with the November 2023 OT recommendations while agreed adaptations were carried out to her home.
34. The panel made recommendations to the Council at the beginning of December. It recommended the Council:
• reviewed its short breaks arrangements to consider improvements that could be made. It included 15 points of consideration for that review;
• assure Ms X that her views on a carers assessments were recorded appropriately;
• apologise for the delay in reviewing the carers assessment and review it by the end of 2023; and
• apologise for the upheld complaints and provide a remedy for the time and trouble caused to Ms X by the delay in the stage two complaint handling.
35. The Council wrote to Ms X in January 2024 with its response to the stage three panel report. It agreed with the panel’s findings. It provided Ms X with evidence her views on the carers assessment had been recorded and apologised for the delay in the annual carers assessment and confirmed it had reviewed the assessment in December 2023. It apologised for the impact of the delay on Ms X and offered £50 in recognition of the time and trouble caused by the delay in the stage two investigation. The letter said the Council would ‘look to see where any changes or improvements can be made’ in the short breaks arrangements. It made no reference to the panel’s comments on Ms X’s desired outcomes.
36. Ms X raised a new complaint in December 2023, before the Council provided its stage three response. She complained she had not been informed that the two-to-one short breaks package she had been told was removed in August 2023, was not actually removed and she had found out during the panel hearing. Ms X also complained that OT recommendations were refused by the short breaks panel in November 2023.
37. In response the Council partially upheld Ms X’s complaint about the short breaks support. It said it decided in August 2023 to cease the support that was in place, it then overturned that decision but did not inform Ms X. It apologised for the confusion and confirmed that it continued to provide the direct payments for the support. It said it considered the OT report in December and arranged for the care package as recommended by the OT from January 2024.

Additional information

38. In response to my enquiries the Council said it had started the review of the short breaks arrangements as recommended by the panel. It had collated the initial consultations results and was reviewing the results.
39. The OT report of November 2023 recorded Y had had numerous accidents in the home environment and was at high risk of further injury. It recorded major works were needed to provide safe access to the bathroom and to improve the garden safety of Ms X’s new property. It recommended Y received two-to-one care support to access the community while the garden was unsafe, and support from a carer worker every other day for Ms X to bath or shower Y. It noted once the property had been adapted the package of care could be reviewed.
40. The Council said it considered the OT report of November 2023 at a short break panel on the 8 December but was unable to decide due to a lack of relevant professionals at the meeting. The Council said it agreed the OT recommendations at a panel meeting held the following week. It did not have a record of that meeting or of the decision-making process. The Council could not provide evidence of a written response to Ms X about its decision. A care provider did begin to provide support from January 2024 for support with bathing every other day. There is no reference to the two-to-one community access support referenced in the OT report.
41. The Council said it had worked with an OT to determine an interim plan of support for Ms X and Y while it was waiting for adaptations to be completed to make the property safe for Y, but it had not yet taken any action to put the plan in to place. The Council did not provide any information on what the interim plan was or why it was delayed.

My findings

42. The Council considered Ms X’s complaints through the statutory children’s complaint procedure. The stage three panel’s purpose is to consider the adequacy of the stage two investigation. The stage three panel considered the stage two investigation and gathered further information it required. It upheld two previously not upheld and one partially upheld complaint elements. I am therefore satisfied the overall findings of the children’s statutory complaints procedure can be relied upon. I have not investigated them further. However, the panel did not adequately identify the injustice caused to Ms X and Y as a result of the upheld complaints and so I have made further findings on those points.
43. The stage three panel made several recommendations to the Council as set out in paragraph 34. The Council has provided evidence it has completed the recommendations related to Ms X. It has provided evidence it has started gathering information for a review of the short breaks service. However the panel made the recommendation for the Council to review its short breaks arrangements nine months ago. I have made a further recommendation on this point below.
44. The Council told the stage three panel it would consider the OT report following the panel meeting and inform Ms X of its decision in writing. The panel did not uphold complaint i) on that basis. Although the Council did go on to consider the OT report, it has no record of how it considered it, or of it providing its decision to Ms X in writing. Ms X told the Council in December she believed it had refused the OT’s recommendations. The Council’s failure to keep accurate and complete records is fault. It leaves uncertainty for Ms X about whether it properly considered the OT recommendations.
45. The stage three panel made two suggestions to the Council. Although these were not recommendations based on the faults identified, they were in relation to Ms X’s desired outcomes from the statutory complaints process. The Council did not respond to either point in its stage three adjudication letter to Ms X which leaves her with uncertainty about how the Council considered those two points. I have addressed them further below.
46. The panel asked the Council to urgently provided an interim plan of support for Ms X in caring for Y while the adaptations were completed at her property. I am unclear if the interim plan was in addition to, or included in the OT recommendations of November 2023. However, the Council has no record of how it considered the OT recommendations for two-to-one support for community access, and stated it has not implemented an interim plan or provided any information about what the interim plan should or would include. The Council’s lack of consideration on the matter the panel identified as urgent is fault. It leaves uncertainty about what support Y should have received from December 2023.
47. The panel also suggested the Council reinstate Y’s short break provision it had removed in August 2023. However the Council confirmed to Ms X in a separate complaint response in December 2023 that it had never removed the short breaks funding. This combined with the panel’s finding that the Council operated a system that removed unused short breaks provision caused Ms X an injustice. She was unaware that the short break direct payments were being made but was put at risk of losing them if they were not used. It also caused Ms X and Y an injustice as he did not receive the short breaks he was entitled to between August and December 2023, when the Council told Ms X it had not removed the short break direct payments. However, Ms X did continue to receive the direct payments for short breaks for that period which are available for her to use for Y’s benefit. I have made a further recommendation on that point.
48. Y is a vulnerable child with additional needs. Ms X is a single parent managing Y’s needs in a property the Council identified was posing a risk to the child. The Council’s failure to implement an interim plan, fully consider the OT’s recommendations and explain to Ms X the direct payments for short breaks was still available put Y at risk of harm and caused Ms X distress.
49. The stage two investigation identified there had been a three-month delay in completing the first two stages of the children’s statutory complaint procedure. The Council offered Ms X £50 for the time and trouble this caused to her. This remedy is insufficient and not in line with our guidance on remedies. Ms X requested a stage three panel in August 2023. The Council should have arranged the panel meeting within 30 working days and responded to Ms X within a further 20 days. The Council did not arrange a panel meeting until the end of November and did not respond to Ms X until the beginning of January, over 90 days after Ms X’s request. That was an overall delay of over 40 working days and was fault causing Ms X frustration and time and trouble. I have made a recommendation below to remedy the injustice caused by the delay in both stages of the statutory complaint procedure.

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Agreed action

50. Within one month of this decision the Council will:
1. Write to Ms X and apologise for the injustice caused to her and Y by the Council’s faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended;
2. Pay Ms X £1,000 for the avoidable uncertainty, distress and time and trouble caused by the Council’s faults;
3. Pay Ms X £300 for the risk of harm caused to Y by the Council’s faults;
4. Consider if any unused direct payments for short breaks at the end of the period are as result of Ms X being unaware the Council continued to make direct payments between August and December 2023. If so the Council should not seek to reclaim them to allow Ms X more time to arrange provision to meet Y’s needs; and
5. Consider the OT’s recommendations alongside the current progress of adaptations to Ms X’s property and implement the urgent interim plan suggested by the panel in November 2023. The Council will set out in writing to Ms X how it has considered the recommendation, what the interim plan of support is and the date it will complete a review of that plan.
51. Within three months of this decision the Council will:
1. Complete the review of its short breaks arrangements recommended by the stage three panel including the 15 identified points of consideration. The Council will produce a timebound action plan for any improvements it intends to make as a result of the review; and
2. Remind relevant complaint handling officers that where a complainant has requested a stage three panel in the children’s statutory complaint process, the stage three panel should be held within 30 days and the Council should respond within a further 20 days.
52. The Council will provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and avoid the same fault occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman