The Ombudsman's final decision
Summary: Mr X complained about the Council’s consideration of his complaint about a child protection matter under the statutory complaint procedure. Mr X said he suffered distress and there was a harmful impact on both his mental health and his relationship with his son. We found the Council properly investigated Mr X’s complaint but there was avoidable delay. During our investigation, the Council apologised to Mr X, offered a symbolic payment and made service improvements. We consider this action provides a suitable remedy.
The complaint
The complainant, whom I shall refer to as Mr X, complains about the Council’s consideration of his complaint about a child protection matter regarding his son under the statutory complaint procedure. In particular, Mr X says there was avoidable delay in the process and the Council did not investigate all the issues he had raised and accepted false information and allegations.
Mr X says the Council’s actions caused him distress and resulted in a harmful impact on his mental health and his relationship with his son.
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) 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) We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, 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 Mr X about his complaint and considered the information he provided. I considered information from the Council including the stage two investigation report and the stage three panel report.
I have provided Mr X and the Council the opportunity to comment on my draft decision and I have considered the comments received before reaching my final decision.
What I found
Relevant law and guidance Children’s statutory complaints procedure Section 26(3) of the Children Act (1989) says all functions of the Council under Part 3 of the Act may form the subject of a complaint under the statutory complaints procedure. Complaint investigations under the statutory procedure consist of three stages: Stage 1: Staff within the service area complained about try to resolve the complaint. Councils have up to 20 working days to respond.
Stage 2: An Investigating Officer (IO) and an Independent Person (IP) investigate the complaint. The IO writes a report which includes details of findings, conclusions and outcomes against each point of complaint (i.e. “upheld” or “not upheld”) and any recommendations to remedy injustice to the complainant. The IP monitors the investigation to ensure its impartiality and thoroughness.
Once the IO has finished the report, a senior manager should act as adjudicating officer. They will consider the complaints, the IO’s findings, conclusions, and recommendations, as well as any report from the IP, and the complainant’s desired outcomes. The adjudicating officer should write to the complainant with their decision on each complaint. Councils have up to 13 weeks to complete stage two of the process from the date of request.
Stage 3: A review panel considers the complaint. Following the panel, the members write a report containing a brief summary of the representations and their recommendations for resolution of the issues (The Children Act 1989 Representations Procedure (England) Regulations 2006 19(2)). The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.
Unless there is evidence of fault in the investigation process, the Ombudsman will not usually re-investigate a complaint which has been through the full procedure. This is because a properly conducted investigation is independent and robust. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
Section 20 accommodation Under Section 20 of the Children Act 1989, councils must provide accommodation to certain children in need in their area. Section 20 is used to accommodate children who are unable to live with their parents. Section 20 agreements do not have a time limit however they should not be used as a long-term solution.
Councils have a duty to accommodate under Section 20 if: no-one has Parental Responsibility for the young person; or the young person is lost or abandoned; or the person who has been caring for the young person is unable to continue to provide suitable care and accommodation.
Care orders Where a child is made subject to a Care Order, the council is given Parental Responsibility and will share it with current Parental Responsibility holders, for example, the child’s parents. However, the local authority can exercise their Parental Responsibility above that of current Parental Responsibility holders insofar as necessary to safeguard the welfare of a child.
What happened The following is a summary of key events. It does not include everything that happened.
Background
The police attended Mr X’s property in 2021 and removed his son under a Police Protection Order. The Police contacted the Council to arrange an emergency placement for Mr X’s son. Mr X signed his consent to his son being placed with foster carers under a section 20 agreement. Mr X subsequently gave notice of his intention to withdraw from the section 20 agreement. The Council issued care proceedings which concluded in 2022 with a Care Order being made to the Local Authority for Mr X’s son.
Mr X’s initial complaint Mr X complained to the Council by email on 5 November. The Council provided a response to Mr X on 10 November. This set out that the issues Mr X had raised about the social worker would be difficult to investigate as the relevant team no longer worked with the Council and other concerns related to matters before the court which could not be addressed under the Council’s complaints procedure. The Council suggested a meeting as the best way to address his concerns. Mr X responded to the Council on 10 November to say he was not satisfied with the response and asking for the matter to be escalated to Stage 2 of the Council’s complaint procedure. The Council replied to Mr X on 11 November to confirm the suggested meeting could be used to identify what matters could be investigated outside of the court proceedings.
In subsequent correspondence with the Council Mr X made clear he wanted a full response to his complaint and that he would wait to progress matters until the court proceedings were concluded.
Mr X emailed the Council on 9 May 2022 to ask for his complaint to be pursued as the court proceedings had concluded. Mr X emailed the Council again about his complaint on 18 August.
The Council replied on 28 September seeking details of Mr X’s complaint. Mr X replied the same day as he was surprised to be asked for details of his complaint as these had already been provided. The Council apologised for the delay in responding and confirmed it would be in touch to discuss the matter.
Mr X emailed the Council on 24 October following the above discussion to say he remained unhappy.
Stage 2 investigation The Council emailed Mr X on 1 February 2023 to say it had decided to consider the matter at Stage 2 of its complaint procedure given the nature and longstanding nature of the issues raised.
The Council considered Mr X’s complaint at stage 2 and the investigating officer (IO) issued their report on 20 April. The IO investigated 14 points of complaint which had been agreed in discussion with Mr X in March.
The IO upheld 6 complaints, partially upheld 1 complaint, 5 complaints were not upheld, 1 complaint was recorded as no finding and the remaining complaint was recorded as unsubstantiated. The IO made 7 recommendations. The IP agreed with the IO’s conclusions and outcomes of their investigation as well as their recommendations on 24 April.
The Council wrote to Mr X on 9 May to accept all the findings and recommendations.
Stage 3 independent panel Mr X was unhappy with the conclusion of the stage 2 investigation and asked the Council to escalate the matter to stage 3. The Council emailed Mr X on 22 June to confirm the panel hearing was scheduled for 20 July.
Mr X was provided with a copy of the package of information provided to the Panel before the hearing and attended. The package included Mr X’s email dated 11 May setting out his initial views about the outcome of the stage 2 investigation which also stated he would send in further details of his dissatisfaction with each element. Mr X’s email to the Council of 22 June was also included which asked the Council to contact the solicitor who had previously represented him for information and another third party for the stage 3 panel. The Council replied on 27 June to explain it was a matter for Mr X to provide any additional information to support his continued dissatisfaction with the stage 2 outcome. Mr X emailed the Council on 27 June to say he would not be writing anything further. Mr X has stated there were additional representations that were not included in the panel pack. I note Mr X made representations at the hearing but did not suggest there were any missing documents.
The stage 3 panel broadly agreed with the findings of the stage 2 investigation but made some additional recommendations. The report of the panel was sent to Mr X on 26 July.
The Council wrote to Mr X on 29 September to accept the panel findings in full and apologised for the delay in doing so and in completing the statutory complaints process.
Mr X’s complaint to us Much of Mr X’s remaining dissatisfaction lies with the court proceedings and the Council’s decision to seek a care order. He also remains unhappy about inaccurate records and the content of reports provided to the court. Mr X believes the Council’s case to the court was built on false allegations and lies.
My findings
It is not our role to reinvestigate matters which have already been subject to a properly conducted and independent investigation. To do so would not be a good use of public resources. Instead, our role is to consider the following: was the investigation properly conducted and are the conclusions evidence based. If not, would the Ombudsman reach a different view based on the information available to us?
did the Council offer a proportionate remedy for the injustice caused by fault? If not, would the Ombudsman recommend any further remedial action?
has the Council fully implemented any agreed remedy? If not, has the delay caused any further injustice to the complainant?
The stage 2 investigation and stage 3 panel review were properly conducted, apart from the delays identified above which the Council has accepted. The IO reviewed and considered relevant information, spoke to Mr X and carried out interviews with relevant staff. The IP raised no concerns and agreed with the IO’s findings and conclusions. The stage 3 panel independently considered Mr X’s concerns. There was no fault in the how the Council considered the complaints so I accept the findings.
The complaints process identified the Council was at fault and made recommendations which the Council properly considered and acted on where needed. I have seen no evidence of fault in how the Council responded to the recommendations.
I acknowledge Mr X disagrees with the findings, specifically around the Council’s actions in beginning the court case and the information and reports presented to the court. However, as there is no fault with how the Council carried out the investigation, I cannot question the Council’s conclusions. We also cannot investigate complaints about the start of court action or what happened in court. So, further investigation would not achieve anything further.
The Council has accepted there was avoidable delay in processing Mr X’s complaint. I am satisfied this will have caused Mr X avoidable distress and uncertainty during an already difficult period. The Council was at fault for failing to provide a suitable remedy for that injustice. Where there has been fault during the complaint process the Ombudsman’s Guidance on Remedies recommends making a symbolic payment for the delay in the statutory process.
In response to my enquiries, the Council has provided an apology to Mr X and offered to pay him £1,500 to recognise his injustice. This is in accordance with our published Guidance and I consider it provides a reasonable and proportionate remedy to Mr X and further investigation would not achieve a better outcome.
The Council has also confirmed it has reviewed its complaints policy with the aim of increasing transparency and making it easier for complainants to navigate the process with clear timescales. The Ombudsman would welcome this action.
Final decision
I have completed my investigation as I have found evidence of fault but consider the action the Council has proposed above provides a suitable remedy.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman