The Ombudsman's final decision
Summary: The complainant (Miss X) said the Council failed to investigate her complaint as brought out of time. We find fault with the Council in the way it made its decision refusing to consider Miss X’s complaint. This caused Miss X injustice. The Council agreed to apologise to Miss X and review its decision, applying criteria from the relevant guidance. The Council has now provided staff training and re-visited Children Services complaints which were rejected as out of time in the last six months.
The complaint
Miss X says the Council failed to protect her from physical, sexual and emotional abuse when she was a child, which resulted in physical and emotional harm. She attributes her long-term mental health difficulties to her childhood negative experiences.
Miss X says until recently she had not been aware of the extent of the Council’s failings towards her. She only realised the Council’s role in her life when she accessed her records, following advice on her information rights in an unrelated matter.
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)
How I considered this complaint
I reviewed all the documents sent by Miss X and by the Council Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I found
Legal and administrative framework The guidance ‘Getting the best from complaints’ Social Care Complaints and Representations for Children, Young People and Others (Guidance) is based on the Children Act 1989 Representations Procedure (England) Regulations 2006. Only in exceptional circumstances councils can justify a variation from this document.
The Guidance specifies: which complaints should be considered under children’s statutory complaints procedure; who can complain; process and timescales for considering complaints.
Councils do not need to consider complaints made more than one year after the grounds to make representations arose. In such cases councils should follow the process: complaints manager should write to advise the complainant their complaint cannot be considered, explaining the reasons; the letter should include an advice of the complainant’s right to approach the Local Government and Social Care Ombudsman; councils should make their decisions on a case by case basis with the general presumption in favour of accepting the complaint unless there is good reason against it.
The time limit can be extended at the council’s discretion if: it is still possible to consider the representations effectively and efficiently; it would be unreasonable to expect the complainant to have made the complaint earlier.
Possible ground for accepting a complaint made after one year are: genuine issues of vulnerability; benefit to the complainant in proceeding; sufficient access to information or individuals involved at the time, to enable an effective and fair investigation; action should be taken in light of the human rights-based legislation.
What happened
Background
Miss X has been known to the Council’s Children Services since 2003.
In November 2021, during an appeal against a different council in an unrelated matter, Miss X came across some documents containing information on the Council’s role in her life as a child.
Having experienced extensive difficulties as a child, Miss X found the records upsetting but at the same time realised her wish to learn whether the Council could have prevented some of her problems. She found out she could ask for her records through a subject access request and she did so.
In March 2022 Miss X received the first batch of her records about her childhood. Miss X said only then she became aware of the frequent referrals from the Police to the Council’s Children Services team. She also stated that at this point it occurred to her that many of her difficulties with physical and mental health might have stemmed from the Council’s failings to protect her from physical, sexual and emotional abuse.
Complaint In mid-May 2022 Miss X complained to the Council. She explained the documents recently received from the Council made her aware of the extent of the Children’s Services failings to protect her from harm when she was a child. She mentioned how traumatic events from her childhood, which could have been avoided if the Council fulfilled its duties, have negatively affected her whole life.
In its response, sent on the same day, the Council refused to carry out the investigation. It said complaints should be brought within 12 months from the events complained of so that meaningful and accurate investigation can take place.
As the events referred to by Miss X happened several years before, the Council considered it unlikely it would be able to conduct an investigation.
Council’s response to the Omudsman’s enquiries Responding to my enquiries the Council explained: the Council’s Children’s Services hold both electronic and paper records for Miss X from 2003; all the officers involved with Miss X have left the Council by now and cannot be accessed; despite having records, the Council considers that unavailability of anybody directly involved with Miss X would make it impossible to safely find out facts for this case with reasonable confidence.
The Council failed to provide any case notes and decision-making records sought as part of my enquiries.
Analysis The Council was at fault when making its decision refusing to carry out an investigation for Miss X’s complaint.
There is no evidence the Council looked at and considered the specific circumstances of Miss X’s case such as: Miss X’s vulnerability; the extent of her physical, emotional and mental health difficulties; practical possibility of her bringing her complaint sooner; availability of Miss X’s Children Services’ records; claimed impact of any possible Council’s failings.
On the contrary, the Council’s immediate response combined with the absence of the legal test required for considering late Children Services’ complaints suggests a blanket approach to the late complaints. Such view is justified by the lack of any records with the detailed reasons for the refusal and by the fact that the Council responded to Miss X on the same day she lodged her complaint.
The Council’s fault of non-compliance with the Guidance when refusing to look into Miss X’s complaint caused her injustice. She wishes to find out what happened when she was a child and who was responsible for not protecting her from harm. The Council’s refusal to investigate her complaint without thorough consideration of all the circumstances re-enforced Miss X’s sense of being unfairly treated and let down.
Agreed action
To remedy the injustice caused by the faults identified, we recommend the Council within four weeks of my final decision complete the following: send a written apology to Miss X; re-consider its decision refusing to carry out an investigation for Miss X’s complaint applying criteria specified by the guidance ‘Getting the best from complaints’ Social Care Complaints and Representations for Children, Young People and Others. The Council will send us a record of its reviewed decision, evidencing proper consideration given to all Miss X’s circumstances in accordance with the Guidance.
The Council provided us with the evidence it has now completed our service improvement recommendations: provide its staff dealing with the Children’s Services complaints with the training on the criteria to be applied when dealing with late complaints. The Council will send us a signed statement from the relevant members of staff confirming they have reviewed the guidance ‘Getting the best from complaints’; review all Children Services’ complaints from the past six months, which the Council refused to consider as out of time. If for any of them the blanket approach without consideration to the specific circumstances of the case has been applied, the Council will consider re-visiting these decisions and applying criteria from the guidance ‘Getting the best from complaints’. The Council will send us a list of all the Children Services’ complaints rejected as late and the outcome of the review.
Final decision
I find fault with the way the Council made its decision not to investigate Miss X’s complaint. This fault caused Miss X injustice. The Council has now completed some of the recommended remedies and agreed with the remaining ones. I have now ended my investigation.
Investigator's decision on behalf of the Ombudsman