The Ombudsman's final decision
Summary: The Council was at fault when it did not consider Mrs X’s complaints under the statutory children’s complaints procedures. The Council also delayed or failed to provide a substantive response to many of Mrs X’s complaints. It has agreed to apologise, pay her £250 and make service improvements to help reduce the risk of a reoccurrence of the faults identified.
The complaint
Mrs X complained the Council failed to properly consider her complaints about the behaviour of her social worker and contact arrangements with her child, Y.
As a result, Mrs X says she has been caused frustration and unnecessary time and trouble in pursuing her complaints.
The Ombudsman’s role and powers
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) 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) 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.
How I considered this complaint
I spoke to Mrs X and considered her view of her complaint.
I considered the complaints correspondence and emails between Mrs X and the Council.
I considered the relevant law, the children’s complaints procedure statutory guidance - Children's social care: getting the best from complaints , and our Guidance for practitioners on the children’s statutory complaints process .
I wrote to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.
What I found
The statutory complaints procedure There is a formal procedure, set out in law, which councils must follow to investigate certain complaints about children’s services.
The procedure aims to ensure concerns are resolved swiftly and, wherever possible, by the people who provide the service locally.
Statutory guidance (the Guidance) provides details of what may form the subject of a complaint under this procedure. This includes all council functions within Part 3 of the Children’s Act 1989, which sets out the services councils must provide for children and their families in their area. The Guidance says a complaint may arise because of many things, including the attitude or behaviour of staff, assessment, care management or review, an unwelcome or disputed decision or concerns about the appropriateness or quality of a service.
Any child or young person (or their parent) who is being looked after by the council, or is not being looked after by them but is a child in need, may complain under the statutory procedures.
The statutory procedures have three stages: Stage 1 - Local resolution by the council (a maximum of 20 days); Stage 2 – an investigation by an independent investigating officer not involved in the service (25 days with a maximum extension to 65 days with the complainant’s agreement for complex cases). The complainant then has 20 days to request a Stage 3 review panel; Stage 3 – an independent panel to convene and hold a review meeting (30 days). The Panel then has 5 days to issue its findings and the Council has 15 days to respond to these.
Where a complaint is accepted at stage 1, the council should ensure the complaint proceeds to stages 2 and 3, if the complainant requests this.
Councils can exercise discretion in deciding whether to consider complaints where to do so would be to prejudice any concurrent court proceedings. In these cases, the council must write to the complainant explaining the reason for their decision and specifying the relevant concurrent investigation.
Once the concurrent investigation has concluded, the complainant may resubmit their complaint to the council if it is within one year of the conclusion of the concurrent investigation.
What happened Mrs X has a child, Y who does not live with her. In September 2021, Y was considered a child in need and was receiving support from children’s social care. Mrs X complained to the Council about matters relating primarily to the attitude and behaviour of her child (Y’s) social worker and how the social worker managed the contact arrangements between herself and Y.
The Council responded to Mrs X’s complaint using its corporate complaints procedures. At the end of the response the Council invited Mrs X to either telephone the officer to discuss the response or to contact the department’s complaints team.
In December and January, Mrs X complained again about matters relating to her social worker and how contact arrangements were being organised.
On 28 April 2022, the Council emailed Mrs X. It said it had needed to set up a ‘managed mailbox’ because she had sent in an excessive number of emails and this was affecting its ability to respond to her complaints. The Council said it was unable to provide a timescale for responding at that stage but would update her again in May.
Mrs X complained to the Ombudsman. She said that she was returning to court over matters relating to contact but said the Council had not provided a satisfactory response to any of her complaints.
We wrote to the Council, explained Mrs X’s complaints should be considered under the statutory children’s complaints procedures, and invited it to start a stage 2 investigation. The Council responded and declined to do so, giving the following reasons: the complaints made later by Mrs X were in addition to the initial ones and not solely to express dissatisfaction in the Council’s response; and Mrs X had now indicated her intention to make an application to court in relation to contact and so it was deemed inappropriate to respond to her complaints through the statutory procedures.
My findings
Statutory children’s complaint procedures During the period complained about, Y was a child in need. Mrs X’s complaints to the Council were about matters which the law states should be dealt with using the statutory children’s complaints procedures and not its usual corporate complaints procedures.
In its stage 1 response the Council did not make it clear what complaints process it was using to deal with Mrs X’s complaint. The failure to consider Mrs X’s complaint under the statutory procedure and make this process clear to Mrs X is fault.
However, the Council provided Mrs X with options to escalate her complaints if she remained unhappy. There is no evidence Mrs X took this step. Instead, she raised further complaints with the Council in December and January.
At this stage, it was clear Mrs X remained dissatisfied. The Council should have contacted Mrs X to discuss her complaint statement and clearly define the scope of what it would take to Stage 2 of the statutory procedures. It should also have explained how it would address her later complaints and, if these were to form part of a new investigation, define the scope of this investigation as well. By failing to do so, it lost the opportunity to bring clarity to the process. This was fault.
To date, the Council has delayed eight months in proceeding to Stage 2 over Mrs X’s initial complaint and failed to provide a substantive response for six months to her later complaints. Although I acknowledge some of these delays have been caused by the number of emails Mrs X has sent to the Council, this amounts to fault.
Court proceedings In its response to the Ombudsman, the Council gave the fact Mrs X had started court proceedings as one of the reasons why it has not pursued her complaints.
The law states councils can decide not to investigate complaints if to do so would jeopardise court proceedings. The Council has not explained why any investigation would do so. And if the Council is of the view any investigation would jeopardise court proceedings, it has failed to write to Mrs X to explain this and to inform her she can resubmit her complaint once proceedings have finished. This is further fault.
Injustice to Mrs X As a result of the fault, Mrs X has been caused frustration and time and trouble in having to complain to the Ombudsman. The Council’s failure to clearly explain the complaint procedures to Mrs X and define what it would investigate also added confusion to the proceedings.
Agreed actions
Within one month of the date of the final decision, the Council has agreed to: apologise to and pay Mrs X £250 for failing to clarify the complaints procedures and for either the delays or the failure to provide a substantive response to her subsequent complaints; clarify with Mrs X her statement of complaint following its stage 1 response and start a stage 2 investigation. This should be completed in line with the statutory timescales. It should progress the complaint to stage 3 following this, if this is Mrs X’s wish. If there are further delays, the Council should consider at either stage 2 or stage 3 of the statutory procedures whether a suitable financial payment is appropriate to remedy the injustice caused by these additional delays clarify with Mrs X how it will deal with her subsequent complaints; and remind relevant staff of the requirements of the statutory children’s complaints procedures, including what should be considered under them and the timescales.
Final decision
There was fault leading to injustice. The Council has agreed to my recommendations and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman