Summary: Mrs X complained that the Council refused her initial request for a disability social care needs assessment for her child and, having later agreed to complete an assessment, delayed in doing so. She also says it refused to provide support for her child and delayed in responding to her complaint. We found no grounds to question the Council’s decision not to provide support. However, we found it was at fault in that it refused Mrs X’s initial request and delayed in completing an assessment. It also delayed in responding to Mrs X’s complaint. The Council has agreed to make a payment to Mrs X in recognition of the injustice caused.

The complaint

1. Mrs X complains that the Council:
• refused her initial request for a child’s disability social care needs assessment;
• having later agreed to complete an assessment, delayed in doing so;
• refused in-home care support for her disabled child; and
• delayed in responding to her complaint.
2. Mrs X says these failings have caused the family distress. She says they are struggling without support and Mr X has had to reduce his working hours to help meet his child’s high care needs which has impacted the family financially.

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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 an injustice, 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 the decision making, 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 have considered all the information provided by Mrs X and the Council.
7. Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Legal and administrative background

Duty to safeguard and promote welfare

8. 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.
9. 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 of the Act. These 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. Where a referral is accepted under section 17 the council should lead a multi-agency assessment and compete it within 45 working days.
11. The expectation of ‘Working Together to Safeguard Children’ 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.
12. 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.
13. 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.
14. 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.

Parent Carers

15. The Children Act 1989 (as amended by the Children and Families Act 2014) 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’, or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.

Statutory complaints procedure

16. 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.
17. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
18. 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 investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
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. The panel must issue a report within five working days. The Council must send its response to the panel’s recommendations to the complainant within 15 days of receiving the panel’s report.
20. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

Key facts

21. Mrs X’s son, C, has a diagnosis of autism with severe and complex learning difficulties and severe language impairment. He often displays challenging behaviour.
22. On 16 March 2021 Mrs X contacted the Council’s First Response Team requesting a social care needs assessment for C. The First Response worker contacted a Children’s Disability social worker who suggested an Early Help referral would be more appropriate because Mrs X was requesting support around aspects of C’s behaviour.
23. Mrs X contacted the Head of Service on 21 April 2021 again requesting a social care needs assessment. This was started immediately.
24. An Early Help assessment was completed on 5 May 2021.
25. A Young Carer’s referral was completed for C’s siblings on 22 July 2021 with input from Mr and Mrs X.
26. C’s social care needs assessment was completed in August 2021. The social worker completing the assessment, Officer A, found that C did not meet the threshold for support because his needs were not severe enough. She found he had needs arising from his disability but that Mr and Mrs X were able to meet those needs. So, he had no unmet need requiring Children Disability Services support. The officer offered practical solutions to help the situation, such as adjusting the family’s routine and environment. The assessment stated that behavioural support and guidance had been provided by CAMHS and Mr and Mrs X were able to follow that guidance and implement positive behaviour support planning which would assist in handling C’s challenging behaviours and ensure his safety by reducing the risks. The assessment report also stated that one of C’s siblings had been referred to Young Carers.
27. Mrs X disagreed with the outcome of the assessment. She considered C easily met the Children Disability Service’s criteria and requested help and support with C’s care in the home in the evenings to enable her to meet the needs of her other children and provide them with respite from assisting with C’s care and allow them to concentrate on schoolwork and resting after school.
28. Mrs X complained to the Council on 10 October 2021. It responded at stage 1 of its complaints procedure on 17 November 2021.
29. Mrs X requested to escalate her complaint to stage 2 on 20 November 2021.
30. The Council appointed an Independent Investigator (IO) and an Independent Person (IP). The IO and IP met with Mrs X to agree the statement of complaint. The IO interviewed Council officers and considered the Council’s case files, additional evidence provided by Mrs X and relevant legislation.
31. The IO issued a report on 28 July 2022. She upheld Mrs X’s complaints that:
• Children’s Services refused to carry out a disability social care needs assessment in March 2021 following her request regardless of the fact that C was entitled to such an assessment when requested by a parent;
• the assessment was not completed within timescale; and
• Children’s Services had failed to offer a carer’s assessment to Mr and Mrs X contrary to the Children and Families Act 2014 section 97 which states that councils must assess whether a parent or carer has needs for support.
32. The IO did not uphold Mrs X’s complaint that Children’s Services had not completed a robust assessment of C’s needs and the needs of his family and had not considered the impact of C’s disabilities on the wider family. She found that both Early Help and Children’s Disability Services had completed robust assessments which considered the impact of C on the wider family and his siblings had been referred to Young Carers.
33. The IO recommended that the Council apologise to Mrs X for the failings identified and provide her with a further explanation of why it considered C did not meet the criteria for support.
34. The Independent Person (IP) also prepared a report. She confirmed that, except for timeliness, the IO’s investigation had been conducted in line with statutory guidance and had been completed objectively and fairly. She agreed with the IO’s findings except she partially upheld Mrs X’s complaint about the assessment on the basis that, although a robust and detailed assessment had been completed of C’s needs, there was limited reflection of the views, wishes and impact on his siblings.
35. The IP recommended that, as new supporting evidence had now been provided by Mrs X, and C’s needs were evolving, it may be appropriate for her to request a new social care needs assessment for C and for Children’s Services to consider the new evidence.
36. On 29 September 2022, following receipt of the reports, the Council sent a stage 2 response to Mrs X. It accepted the findings and apologised for its failings.
37. Mrs X requested that her complaint to be considered at stage 3 of the statutory complaints process.
38. A stage 3 Panel hearing was held on 19 December 2022 and Mrs X attended. The Panel considered her complaints in detail. It was satisfied that the stage 2 investigation and report was “good, evidence-based, and gives detailed consideration of relevant law and regulations” and it agreed with the findings of the IO and the IP.
39. The Panel agreed that the social care needs assessment was robust but also agreed with the IP that the impact of caring responsibilities on siblings and parents could have been explored in more depth.
40. The Panel also found that the Council had not yet provided the further explanation recommended in the stage 2 investigation.
41. The Panel recommended that the Council consider a financial remedy for the delay in the stage 2 process and in providing the further explanation. It also recommended that Mrs X agree to a further assessment of C’s needs given his evolving needs.
42. Following the outcome of the panel hearing, the Council provided Mrs X with the explanation recommended at stage 2 and apologised for the delay in doing so. It explained that, when the assessment was completed in August 2021, the social worker concluded C was still developing and referred to examples to show he did not meet the criteria for support. However, it accepted she had not fully explained the reasons for her decision and acknowledged this would have caused confusion. The Council accepted that, since then, Mrs X had provided further information about C’s long-term developmental needs and this could be used in a further assessment which may result in a different outcome.
43. The Council also accepted there had been a delay in responding to Mrs X’s stage 2 complaint and offered her £250 in recognition of the time, trouble and distress this had caused her.
44. A further assessment of C’s needs was completed in January 2023 by a different social worker. She concluded C did meet the criteria for support. She found there was a lack of opportunity for him to develop independence away from his immediate family and home and he would benefit from attending a special needs weekly youth club. This would also provide carer relief for Mrs X and allow her to spend time with her other children. She also identified that the family would benefit from some support during school holidays. However, she did not agree with Mrs X’s request for support in the home in the evenings concluding that the needs highlighted by Mrs X were not sufficient to receive social care support. Officer B made suggestions as to how Mr and Mrs X could manage this period of the day.

Analysis

Request for a social care needs assessment

45. The Council accepts it should have completed an assessment of C’s social care needs when Mrs X initially requested this in March 2021. It has apologised for failing to do so.
46. The Council’s initial refusal to complete an assessment resulted in a delay of six weeks in starting the assessment, causing Mrs X distress and frustration.

Delay in completing the assessment

47. Working Together 2018 says a social care needs assessment should be completed within 45 working days. The Council’s policy is that an assessment should be completed within 40 working days.
48. The Council took 86 days to complete the assessment which is significantly longer than the required timescale. Given the outcome of the assessment, C did not miss out on any services because of the delay. However, the delay caused Mr and Mrs X distress, uncertainty and frustration.
49. The Council apologised for this delay and said it would stress the importance of timely assessments to the Children’s Disability Team and monitor this in staff supervision. While this goes some way towards remedying the injustice caused, I have made further recommendations below.

Outcome of the assessment

50. The Council’s position is that it will not provide services where a child does not meet the threshold criteria for support. Where a child meets the threshold criteria, it will only provide support if there is an identified social care need arising from the child’s disability.
51. The first assessment, completed in August 2021, concluded that C did not meet the criteria for support. The stage 2 investigation found this decision was made “following a robust assessment which took into account all relevant available professional input at the time” (my emphasis). The stage 3 Panel found that the assessment was detailed and comprehensive. Having considered the assessment, I agree.
52. Mrs X says the decision was wrong and refers to an email dated 20 March 2023 in which C’s new social worker stated, “there seems to have been a misunderstanding regarding [C’s] previous assessment… which did conclude that he didn’t meet the criteria however myself and [another officer] believe that [C] does now meet the threshold of the Children’s Disability Service”.
53. The Council accepted in its letter of 21 December 2022 that the previous social worker had not properly explained the reasons for her conclusions. However, the fact that the outcome of the second assessment was different from the first one does not mean there was fault. The outcome of the first assessment was a matter for the first social worker’s professional judgement on the evidence available at the time. Mrs X later provided new information about C’s needs which would have affected the outcome of the second assessment. In addition, when the second assessment was carried out C was 18 months older and his needs are likely to have evolved. This is supported by the new social worker’s comment that she believed C “does now meet the threshold”.
54. I appreciate Mrs X strongly disagrees with the decision that C did not meet the threshold criteria in August 2021. But, in the absence of fault in the decision-making process, the Ombudsman has no power to question the decision which was a matter for the social worker’s professional judgement.
55. Mrs X also disagrees with the Council’s decision in the second assessment that the family did not require support in the evenings. Again, this is a matter for the officer’s professional judgement.

Failure to offer a carer’s assessment

56. The Council accepts it failed to offer Mr and Mrs X a carer’s assessment. This was fault. A carer’s assessment has now been completed as part of the reassessment of C’s needs which goes some way to remedying the injustice caused. However, the Council has agreed to an additional remedy as set out below.

Complaints process

57. I find there were significant delays in the complaints process.
58. Mrs X complained to the Council on 10 October 2021. The Council issued its stage 1 response on 17 November 2021. This was a delay of 8 working days.
59. Mrs X requested to escalate her complaint to stage 2 on 20 November 2021. The Council sent its stage 2 response to Mrs X on 29 September. This was a significant delay. The stage 2 response should have been issued by 21 February 2022.
60. Mrs X requested that her complaint to be considered at stage 3 on 8 October 2022. The Panel hearing should have been held within 30 working days, that is by 18 November 2022. It was not held until 19 December 2022.
61. The Panel issued its report within five working days of the hearing which was in accordance with the required timescale. The Council should have issued its response to the Panel’s recommendations within 15 working days of receiving the panel’s report. It did not do so until 19 January 2023. Although the Christmas holiday intervened, this was still outside the required timescale.
62. The Council has offered to pay Mrs X £250 for the injustice caused by the delay in the complaints process. I consider this to be a satisfactory remedy.
63. The Council also delayed in implementing one of the recommended actions at stage 2. It has apologised for this, and I consider this to be an adequate remedy for any injustice caused.

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Agreed action

64. In addition to the £250 offered by the Council for the delay in the complaints process, the Council has agreed that, within one month, it will make a symbolic payment of £500 to Mrs X in recognition of the injustice caused by the delay in starting an assessment, the significant delay in completing the assessment and the failure to complete a carer’s assessment for her and Mr X.
65. The Council should provide us with evidence it has complied with the above actions.

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Final decision

66. I find the Council was at fault in that it refused Mrs X’s initial request for a social care needs assessment, delayed in completing an assessment, failed to complete a carer’s assessment and delayed in responding to her complaint.
67. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman