Summary: Mrs X complained the Council failed to provide a personal assistant to support her disabled child between February-November 2024. She also complained the Council refused her request for residential respite care. The Council was at fault for failing to provide a personal assistant for a period of nine months. However, the Council assessed Mrs X’s request for residential care in line with the relevant law and guidance without fault. The Council has agreed to apologise and make a payment to Mrs X to recognise the distress, frustration and uncertainty caused by the lack of support that was in place for her child between February-November 2024.

The complaint

1. Mrs X complained the Council failed to provide a personal assistant to support her disabled child between February 2024 and November 2024. She also complained the Council refused her request of residential respite care.
2. She says her child is not getting the required support and this has caused them distress, frustration and uncertainty.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
6. 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)
7. 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

8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. Mrs X and the Council had the opportunity to comment on this draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

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 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.
12. 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.

13. 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.
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.

What happened

15. Mrs X has a disabled child (Y), and the Council assessed them as needing support from a personal assistant five hours a week who takes them out into the community. The support is outlined in Y’s Child and Family assessments and therefore comes under the CSDPA.
16. Y had a personal assistant until February 2024 at which point they left the role. Records show the Council was aware Mrs X’s personal assistant was leaving the role in February 2024 and it needed to make a job advert to recruit a new one.
17. In April 2024, the records show the Council gathered information on a personal assistant agency and held a discussion about requesting extra funding. In May 2024, the Council asked all professionals involved in the case for details of personal assistants and asked a college to create a job advert for the role.
18. The same month Mrs X raised a stage one complaint. She said Y has not had a personal assistant in place since February. Mrs X said she has sought support from her GP and paediatrician, and they agreed further respite needed to be available on top of the five hours a week support from the personal assistant. During this time, Mrs X was frequently unable to get Y to school and medical appointments because of the lack of support in place. She also called the Police on occasions because of Y’s behaviour.
19. In June 2024, the Council issued a stage one response saying unfortunately it had not found a personal assistant yet but had reached out to its contacts to try and identify one. The Council said the agreed costings for the role was £13.98 an hour and it advised Mrs X to continue searching for one herself. In the meantime it signposted Mrs X to support services which could provide some respite and said it would continue to do direct work with the family under a Child in Need plan.
20. The same month Mrs X requested the Council escalate her complaint to stage two but it declined. The Council said it was a disagreement about the funding available for a personal assistant which it could not resolve through the complaints process.
21. In July 2024, the Council called Mrs X about a potential candidate. It continued communicating with the potential canadiate into August 2024 but they did not take on the role.
22. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us.
23. Since then, in September 2024 the Council increased the agreed costings for the role to £15.31 per hour which Mrs X receives through a direct payment. Both the Council and Mrs X still could not find a personal assistant. Therefore, in November 2024, Mrs X hired a personal assistant for above this wage and is contributing £7 per hour herself to cover it.

Council’s response to our enquiries

24. The Council says it made significant attempts to identify a personal assistant but it does not have a large pool of personal assistants for it to access when families are in need. Therefore, families need to identify personal assistants themselves. It says it is confident it made all possible attempts to identify a personal assistant.
25. In relation to residential care, the Council says since Y was referred to the Children with Disabilities team in September 2023, it has completed two Child and Family Assessments. In these assessments, it has considered and assessed the package of support Y requires. It says Y does not meet the threshold for residential respite care. The Council has provided the most recent Child and Family Assessment which echoes this.

My findings

Failure to find a personal assistant

26. Mrs X’s personal assistant left in February 2024. The Council were aware of this and acknowledged that it needed to create a job advert for the role. However, it did not start requesting details of personal assistants or create the job advert for the role until May 2024 which was fault. This three-month delay caused the matter to drift without meaningful progression.
27. However, even after the Council started recruiting for the position, it took a further 6 months to fill the role. Whilst the Council increased the direct payments to £15.31 per hour in September 2024, it was unable to recruit a candidate to fulfill the role for that amount. This has meant Mrs X has had to top up the wage. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970 states direct payment must be sufficient to meet the assessed needs. The Council says it does not have access to a big pool of personal assistants to support families in need. However, it is likely, on balance, that £15.31 is not enough to recruit a personal assistant and that has caused the main delay. The failure to provide a direct payment at a rate to meet Y’s needs is fault and has caused Mrs X unnecessary financial cost and contributed to Y’s needs going unmet for nine months.

Request for residential respite

28. It is not the Ombudsman’s role to decide what, if any, care and support a person needs. That is the Council’s role. The Ombudsman’s role is to consider if the Council has followed the correct process of establishing a person’s needs and if it acted correctly when this process was complete. In doing so we look at the information the Council considered.
29. Mrs X wanted residential respite for Y and complained the Council refused this. The Council decided Y does not meet the threshold for this. The Council has completed two Child and Family Assessments which considered Y’s needs, the support they were receiving and what would be required going forwards to meet their needs. There was no fault with how the Council assessed Y’s needs or how it decided what support they require. Whilst Mrs X disagrees with the level of support Y requires, there is no fault in how the Council reached its decision so I cannot question it.

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Action

30. Within one month of the final decision, the Council has agreed to take the following action:
1. Apologise to Mrs X for the distress, frustration and uncertainty caused by the Council failing to provide a personal assistant for nine months. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Pay Mrs X £300 for the distress, frustration and uncertainty caused by Council failing to provide a personal assistant for nine months.
3. Upon receipt of the invoices, refund Mrs X the £7 per hour she has been contributing to the wage from November 2024 to now.
4. Find a personal assistant for Mrs X within the budget of £15.31 or increase her direct payments to cover the cost of current personal assistant.
31. Within three months of the final decision, the Council has agreed to take the following action:
1. Create an action plan explaining how the Council is intending to increase its pool of personal assistants.
32. The Council should provide us with evidence it has complied with the above actions.

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Decision

33. I find fault causing injustice. The Council has agreed to my recommendations to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman