Summary: Mrs B complained that the Council failed to provide adequate support to her and her son (C) when he was experiencing distress, failed to explain why he was not eligible for services from its disabled child team and delayed excessively in arranging personal assistant support through direct payments. We have found fault with the Council’s actions. The Council has agreed to apologise to Mrs B, pay her £1300 and provide evidence of improvements to its procedures for the future.

The complaint

1. Mr B complained that Kent County Council (the Council) in respect of her son, C:
• failed to provide any support from the disabled children’s service (Strengthening Independence Service - SIS);
• failed to explain why C is not eligible for support or provide any evidence of the decision-making process; and
• delayed in providing Personal Assistant support through direct payments.
2. This has caused Mrs B and C significant distress and inconvenience.

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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. 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 have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided.
6. 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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What I found

Duty to safeguard and promote welfare (section 17)

7. 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.
8. 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.
9. Services which can be provided under section 2 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.

Assessment of need

10. The expectation of ‘Working Together’ is that an assessment which identifies significant needs will generally lead to the provision of services, but it 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.
11. 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.
12. 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.
13. 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.

Direct Payments

14. Parents/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/carer to meet the child’s needs. DPs do not affect any benefit entitlement.

Statutory complaints procedure

15. 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.
16. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
17. 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.
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.

What happened

20. Mrs B’s son C has a number of health conditions which affect his behaviour and mental wellbeing. The Council’s children’s services had been involved with the family for several years, when in September 2022 C tried to take his own life at school. The Council provided support through home visits and direct work with C. It intended to complete a child and family assessment and then liaise with the disabled children’s team (now known as Strengthening Independence Service – SIS) regarding ongoing support and interventions.
21. In November 2022 the family’s social worker (SW) completed a carer’s assessment for Mrs B. They agreed that the best way forward was for personal assistant support through direct payments. Mrs B had identified a suitable person and felt better able to go through the process than she had previously. SW also recommended that SIS attended the next child-in-need meeting to consider whether the threshold was now met for support from that service.
22. SW continued to provide support to the family. In February 2023 the Council’s Neurodiverse Forum discussed C’s case. SIS said they had considered the case in September 2022 but felt it was not for them as C’s father’s behaviour was the cause of C’s problems. SW said the father’s behaviour had improved and SIS said it would keep the case under review. The Panel suggested a number of sources of support, particularly around education.
23. SW continued with regular visits and direct work with the whole family.
24. In May 2023 SW completed the child and family assessment. Their recommendation was again that SIS consider providing support.
25. In July 2023 Mrs B again requested support via direct payments and overnight respite, along with mentoring support for C.
26. In August 2023 SW and SIS carried out another joint visit. Following this visit SIS concluded that C did not meet its eligibility criteria for the following reasons:
• C did not have a severe learning, severe health or communication need.
• SIS considered that C’s father’s poor and potentially harmful parenting was the most significant factor impacting on C’s behaviour at home.
• SIS accepted that C had a diagnosis of Autistic Spectrum Disorder (ASD), but while not understating C’s needs and the difficult family situation, SIS did not consider that ASD was the primary factor affecting the family.
27. SIS informed SW of the conclusion and suggested a follow-up meeting to discuss in more detail, but this did not happen. There is no evidence that Mrs B was informed of the decision or the reasons for it at this point.
28. By September 2023 Mrs B had separated from her husband and he had moved out of the property. She was concerned that she would be the sole carer and asked again about direct payments to provide some support for her with C. SW agreed to update the carer’s assessment and progress the direct payments referral. She also asked SIS to review its decision.
29. SIS considered the case again in November 2023 It initial response was that C was not eligible for its service. It said that while his neurodiversity was an exacerbating factor, the primary concerns were about his mental health which were for mental health services to take the lead in supporting. There is no evidence Mrs B was informed of the decision or these reasons. SIS then carried out a joint visit to further consider the situation. At a supervision in December 2023 SW said she was still waiting to hear back from SIS.
30. There is no mention of progress with either SIS or direct payments until February 2024 when at a child-in-need review Mrs B said she was going to make a formal complaint about the lack of support she and C had received from either SIS or through direct payments. SW said they had not received a response from SIS and chased the service on 27 February 2024.
31. In March 2024 Mrs B completed a direct payment application and in April the Council approved eight hours a week of direct payments for personal assistant support for C. Mrs B said she had found a suitable person but then queried if she could use the direct payments for mentoring and art therapy. The Council refused this request in May 2024.
32. SW chased the direct payments application and was told it would be set up by 30 September 2024. By November 2024 Mrs B said the need for a personal assistant had passed and she no longer wished to pursue it.

Complaint

33. On 5 February 2024 Mrs B formally complained to the Council about the lack of support from SIS or direct payments and the impact on the whole family. The Council responded on 16 April 2024. It said direct payments had now been agreed for a year at eight hours a week. It apologised for the delay in approving the payments and said this was due to the discussions over whether C should have support from SIS. It said it would discuss the decision with SIS.
34. Mrs B escalated her complaint to stage two of the corporate complaints process. The Council responded on 30 May 2024 saying that the direct payments were now resolved, and SW would be managing the process. It said the SIS manager had reviewed the decision about eligibility for its service and concluded that C did not qualify. It gave no reasons.
35. Mrs B complained to us.
36. In response to my enquiries the Council accepts that the delay in progressing the direct payments was unacceptable and was primarily due to the protracted consideration of C’s eligibility for SIS. However, it acknowledges that there was no reason why direct payments could not have been put in place during this period. It says it has taken steps to ensure this error is not repeated.
37. It also agreed that Mrs B’s complaint should have been considered under the statutory complaints process and apologised for this. It said further training had been provided recently to the children’s complaints team and a new triage process was in place with supervision from a senior complaints officer or manager.
38. It does not consider C missed out on any services due to not being transferred to SIS. But acknowledges that reasons for its decision regarding this service were not properly explained to Mrs B. It said that in future the social work team will ensure that parents are given information which clearly reflects the reasons for a decision following a consultation or joint visit.

Analysis

Strengthening Independence Service

39. SIS first considered C’s eligibility for its service in September 2022. I have not seen evidence that it communicated its decision on this request until February 2023 when it said to SW in a meeting that C was not eligible as it considered his father’s behaviour was the main issue in the family rather than his ASD. SIS did not communicate this decision to Mrs B. This was fault as Mrs B did not know why C had been denied access to the service and uncertainty as to whether he had missed out on additional support.
40. SW referred the case again to SIS in May 2023 as they felt he should be transferred to that team. I can see no formal response until a joint visit was carried out in August 2023, after which SIS refused a service for three reasons: father’s behaviour, lack of severe learning, health or communication need and ASD not the primary cause of need. SIS offered a follow-up meeting with SW, but this was not taken up and no formal decision or reasoning was given to Mrs B. This was fault: both the time taken to reach a decision and the lack of communication with Mrs B.
41. In September 2023 SW asked a third time for SIS to consider the case, it took two months to review the decision and again it refused a service. Even though C’s father had left the household, SIS considered C’s needs arose primarily from mental health issues which mental health services should be leading on. Mr B was not informed of this decision. SIS carried out a further visit in November 2023 but did not communicate a decision to either SW or Mrs B, despite SW chasing on several occasions. This was further fault. Mrs B was still left in the dark as to why C did not qualify for the SIS service and uncertain whether he had missed out on additional support.
42. Neither of the complaint responses answered this question, again simply saying C did not qualify for SIS. This was another missed opportunity to properly communicate the decision-making rationale to Mrs B.
43. Given that SW was strongly in support of C transferring to SIS, it was even more important for that service to properly consider and explain its view to Mrs B. I understand Mrs B’s dismay that even though C’s father moved out of the household in September 2023, SIS did not provide a rationale to her as to why even under the these significantly changed circumstances, C was not eligible.

Direct payments

44. Mrs B first asked for direct payments in November 2022 supported by SW. But direct payments were not approved until March 2024 and then further delay ensued in actually implementing them. By November 2024 Mrs B said they were no longer useful. The Council has acknowledged the delay and apologised. It was fault which meant Mrs B and C missed out on support which would have been beneficial to them both.

Complaint-handling

45. The Council should have considered this complaint under the statutory three stage procedure. It was about access to children’s services and provision of direct payments from a service-user. The failure to use the three-stage procedure was fault. Mrs B was denied the opportunity to have a thorough examination of her complaint with recommendations for action to put matters right. The complaint responses she did receive through the corporate complaints process were woefully inadequate. They did not answer Mrs B’s complaint or provide any reasons for the delay in implementing the direct payments or access to SIS or provide any remedy. This was fault which exacerbated the frustration and uncertainty Mrs B had already experienced.

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Agreed action

46. In recognition of the injustice caused to Mrs B and C, I recommended the Council within one month of the date of my final decision:
• Apologises to Mrs B and makes a symbolic payment of £1300 (£600 for the delay in the direct payments, £400 for the lack of communication and delays with SIS and £300 for the poor complaint handling).
47. Within three months it should also:
48. Provide evidence of the steps taken to:
• ensure direct payments are not held up due to discussions over which service is involved with a service user; and
• ensure the reasons for decisions about which service a child will be under are fully explained to parents in good time.
49. The Council has agreed to the recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

50. I consider this is a proportionate way of putting right the injustice caused to Mrs B and C and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman