Summary: Mrs D complains about the way the Council dealt with her statutory children’s complaint. We found there was fault in the Council’s final response, which has caused Mrs D time and trouble. The Council has agreed to issue a new response.

The complaint

1. Mrs D complains about the way the Council dealt with her statutory children’s complaint. In particular that the stage two investigation did not comply with guidance and the final response from the Council overturned the review panel’s findings. Mrs D says this has caused her and her husband significant distress as their evidence has been ignored.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:
• we could not add to any previous investigation by the organisation, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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 considered the information Mrs D sent, the complaint documents and:
• The Children Act Representations Procedure (England) Regulations 2006 (“the Regulations”)
• Getting the best from complaints, Statutory guidance for local authorities on children’s services complaints procedures 2006 (“the Guidance”)
7. Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Statutory children’s complaints procedure

8. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The Guidance explains councils’ responsibilities in more detail.
9. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
10. 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.
11. The investigating officer’s report (stage two report) should include details of their findings (‘upheld’ or ‘not upheld’), and recommendations on how to remedy any injustice to the complainant. The Guidance says the investigating officer should have access to all relevant records and staff. It says the investigating officer may interview staff and other people relevant to the complaint.
12. The Council issues an adjudication letter on the investigating officer’s report to give its response, decision on each point of the complaint, and to identify any action to be taken. The Guidance says the adjudicating officer should make sure that any recommendations in the council’s adjudication response are implemented.
13. 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 review panel within 30 days of the date of request.
14. The review panel considers the adequacy of the independent stage two investigation. The panel should make recommendations that provide practical remedies and creative solutions to difficult situations. It should identify any injustice to the complainant where complaints have been upheld and recommend appropriate remedies. The panel should also recommend service improvements for the council, if appropriate. The panel sends a report containing their recommendations to the council.
15. The council must send its response to the panel’s recommendations to the complainant within 15 days of receiving the panel’s report. The response should be developed by the relevant Director setting out how the local authority will respond to the recommendations and what action will be taken. The Guidance says “If the Director deviates from the panel’s recommendations he should demonstrate his reasoning in the response”. (Getting the best from complaints, para 3.18.1)

16. The Regulations say:
• Within 15 working days of receiving the panel’s recommendations the local authority must, together with the independent person appointed under regulation 17(2), consider the recommendations and determine—

(a)how the authority will respond to them; and

(b)what they propose to do in the light of them,

and send to the complainant its response and proposals, along with information about making a complaint to a Local Commissioner. (Regulation 20(3))

17. 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.

What happened

Background to the complaint

18. Between November 2019 and January 2021, the Council supported Mrs D and her husband with their request to adopt a child. In January 2021, Mrs D and her husband withdrew from the adoption process. In March 2021, Mrs D and her husband attended a disruption meeting to discuss the breakdown of the adoption placement. Following this, the Council provided Mrs D with a copy of the report in relation to the disruption meeting.
19. In June 2021, Mrs D complained to the Council in relation to the adoption process. In her complaint, Mrs D highlighted issues she had experienced with professionals who had supported her and her family during the linking, matching and introduction phases of the process. She said:
• they had communicated inadequately with her;
• they had made false allegations about her and her family;
• they gave her inaccurate information about the adoptive child; and
• they were not properly prepared for specific meetings.
20. Mrs D said these issues had influenced her and her husband to withdraw from the adoption process. In addition, Mrs D said the disruption meeting report contained inaccurate and misleading information about her and her family.
21. The Council responded to Mrs D’s complaint in August 2021 and referred her to the Ombudsman. We found that the Council should have followed the statutory children’s complaint procedure. The Council agreed to do so in May 2022.

Complaint handling

22. The Council appointed an independent investigator. On 15 July 2022 the investigator submitted the statement of complaint they had received from Mrs D to the Council.
23. The investigator issued their report on 12 October 2022. It upheld seven of Mrs D’s 21 complaint points. The Council’s adjudication letter was sent on 8 November 2022. It agreed with the investigator’s findings and recommendations.
24. Mrs D remained dissatisfied and was concerned about the investigation which she considered had ignored her evidence and had not complied with the Guidance. She therefore requested escalation to stage three.
25. The review panel was held on 30 January 2023. The panel considered the complaint points that had not been upheld at stage two. It reached different findings to the independent investigator on all but two of them. It sent its report with its recommendations to the Council on 6 February 2023
26. The Council’s final response from the Director was issued on 24 February 2023. The Director noted the panel’s recommendations and overturned six of its findings to either not upheld or partially upheld. Mrs D came to the Ombudsman.

My findings

27. We are not an appeal body and do not reinvestigate complaints that have been through the statutory children’s complaints procedure. This is because they have already been considered by an independent investigator and an independent review panel. Our role is to consider whether there was administrative fault in the process. If there was no fault, we cannot question the outcome.
28. As a publicly funded body we must be careful how we use our limited resources. We conduct proportionate investigations, completing them when we consider we have enough evidence to make a sound decision on whether there is fault causing injustice. This means we do not try to answer every question or address each detailed point raised by a complainant about what a council said and did. So, we cannot always respond to complaints in the detail people might want.

Stage two independent investigation

29. I have considered whether there was fault in the way the stage two investigation was done. Mrs D says:
1. The statement of complaint was not agreed with her. - The evidence shows the investigator used Mrs D’s complaint statement in full. In addition, the Guidance does not require the Council to produce a written statement of complaint if, as Mrs D did, the complainant has made their complaint in writing. There is therefore no fault as the investigator considered a complaint that Mrs D had made.
2. The investigator did not consider all of Mrs D’s evidence and the report did not include or refer to all her evidence. - It is for the investigator to use their professional judgment to determine which evidence to reflect in the report. The panel accepted Mrs D’s evidence had been reviewed by the investigator, although it considered further evidence should have been taken. That the report did not refer to it all is not evidence it was not considered or of fault in the process.
3. The investigator’s report reads as though Mrs D and her husband were to blame for the placement breaking down. - It is for the investigator to use their professional judgment to write the report; it is not evidence of administrative fault that Mrs D disagrees with that wording.
4. The investigator did not interview the foster carer. – The investigator is entitled to determine who to interview. There is no fault.
5. Incorrect numbering between the original complaint statement and the investigating report has led to incorrect issues being considered. – Problems with numbering in a report are not significant enough to be maladministration. The independent investigation considered all the issues raised by Mrs D.
6. The panel found there was a wide disparity between Mrs D’s views and the investigator’s findings and that there “remains a degree of uncertainty which would only be resolved by a reinvestigation”. – The panel did not recommend a reinvestigation and Mrs D had a chance to discuss her concerns and views at the review panel, which is in line with the Guidance and Regulations.
7. There was delay in the complaint process. – As I have said in paragraph 21, we have already found fault with the way the Council considered Mrs D’s complaint in a previous decision in May 2022. To remedy the injustice caused, we asked the Council to undertake stage two within 13 weeks (ie by 24 August 2022). It failed to do so and has already apologised for this and offered Mrs D £200 as redress. This is an appropriate and proportionate remedy in line with our guidance.
30. Mrs D says the stage two investigation was flawed. The panel considered the adequacy of the stage two investigation and Mrs D had an opportunity to raise her concerns then. I note that in some instances the panel overturned the stage two findings and I am satisfied the panel properly considered Mrs D’s representations. I therefore cannot achieve anything by further investigation.
31. Mrs D notes the panel considered the independent investigator should have taken further evidence. As I have said in paragraph 29 d, it is for the independent investigator to determine who they wish to interview. In addition, the Ombudsman cannot investigate individuals and complaints about the professional conduct of social workers should be referred to the social workers’ professional body, Social Work England.
32. I am satisfied that Mrs D’s complaints were appropriately considered and that there has not been fault in the investigation process that undermines the conclusions reached. I therefore will not re-investigate the matter.

The Council’s final response

33. The Guidance and Regulations refer to the Council’s final response considering the review panel’s recommendations. Having carefully considered these, my view is that this does not entitle the Council to issue new findings on the complaint. Although the Council could express an opinion on the panel’s findings, the Regulations do not say it is entitled to substitute its decision for that of the independent review panel.
34. In addition, the final response should set out what actions the Council will take to implement (or not) the recommendations. The letter of 24 February 2023 only says the Council “notes” the panel’s recommendations and does not say whether or what action will be taken.
35. I therefore find fault with the Council’s final response of 24 February 2023. This has caused distress and time and trouble to Mrs D as she has had to come back to the Ombudsman.
36. The Council should issue a fresh final response which does not overturn the review panel’s findings but considers its recommendations, determines how the Council will respond to them, and what it proposes to do in the light of them.
37. In response to my draft decision, the Council said that as the Guidance did not make specific reference to the panel’s “findings” it considered these to be part of the recommendations. However, it agreed to issue a revised final response.
38. If the recommendations are agreed but not implemented, Mrs D can come back to the Ombudsman to consider if there has been fault causing injustice.

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Agreed action

39. Within a month of my final decision, the Council has agreed to issue a new final response to the independent stage three review panel’s recommendations.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman