The Ombudsman's final decision
Summary: The complainant (Miss X) said the Council failed to investigate her complaint as brought out of time. We do not find fault with the way the Council re-considered its decision about Miss X’s complaint.
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 of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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 became aware of the frequent referrals from the Police to the Council’s Children Services team. 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.
Following the Council’s refusal to consider Miss X’s out-of-time complaint, in September 2022 we found fault with the way the Council made its decision and recommended its re-consideration in line with the Guidance.
In the beginning of September 2022 the Council issued a new decision about Miss X’s complaint. The Council determined it would not be possible to investigate Miss X’s complaint in a fair and effective manner for the following reasons: unavailability of staff involved in Miss X’s case when she was a child; lack of specificity in Miss X’s complaint and Miss X’s refusal to accept the assistance of an advocate, offered by the Council; unreasonable delay in raising her complaint by Miss X, which cannot be explained by the lack of knowledge about the Children Services’ involvement or Miss X’s vulnerability. The Council stated Miss X knew about the Children Services’ involvement as on several occasions social workers had contact with her and her family. The Council refused to accept Miss X’s vulnerability as a possible cause for the delay in raising her complaint, saying she did not have any formal diagnosis and was not open to the Adult Social Care team.
Analysis Having reviewed the Council’s decision about Miss X’s out-of-time complaint, which was issued in the beginning of September 2022, I consider the Council followed the right process. I find no fault in the way the Council reached its decision.
In accordance with the Guidance the Council provided the reasons why it would not be possible to consider Miss X’s representations effectively and efficiently. It specifically raised: unavailability of the members of staff with the knowledge of the case; generality of the complaint.
The Council also disagreed with Miss X’s claim she could not bring her complaint sooner. It referred to Miss X’s knowledge of the Children Services’ involvement with her as a child and the absence of any evidence of Miss X’s vulnerability.
It seems the Council erred when interpreting Miss X’s statement about her knowledge of the Children Services’ involvement in her life as a child. In the correspondence available to us Miss X repeatedly said her recent access to the Police records made her aware of the extent of the Children Services’ failure towards her, rather than brought to her attention their involvement in general.
This error, however, could not affect the result of the Council’s decision-making process. Out of all the reasons for refusing to investigate Miss X’s complaint, only one can be seen as flawed. The others show the Council applied the correct test when making its decision.
As explained under paragraph 3, when looking at councils’ decisions we consider whether the councils followed the right process and applied the correct test. We cannot criticise merits of the councils’ decisions.
Final decision
I do not uphold Miss X’s complaint. I do not find fault in the way the Council reached its decision not to investigate Miss X’s out-of-time complaint.
Investigator's decision on behalf of the Ombudsman