Summary: Miss X complained about the way the Council removed her child from her care. She said this had a significant emotional impact on her and her child, impacted her mental health, and caused unnecessary distress. Miss X also complained that the Council failed to respond to her complaint within timeframes set out in law. She said she spent time and trouble chasing the Council. Largely we do not find the Council at fault. However, we find the Council at fault for a delay sending a complaint response. This caused Miss X injustice. The Council has agreed to apologise to Miss X.

The complaint

1. The complainant, who I refer to here as Miss X, complains about the way the Council removed her child from her care. Specifically, she complains that the Council:
1. failed to follow policies and procedures when deciding to remove her child from her care;
2. failed to assess her mother as an alternative carer for her child;
3. disclosed her address to her ex-partner;
4. failed to put the family at the centre of the process; and,
5. failed to respond to her complaint in line with timeframes set out in law.
2. Miss X says this loss of custody of her child at three days old had a significant emotional impact on her and her child. She said it impacted her mental health and caused unnecessary distress. She says she also spent time and trouble chasing the Council for responses to her complaint.

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What I have investigated

3. The Ombudsman cannot investigate complaints that are more than 12 months after the complainant first had knowledge of the problem, unless there are good reasons to do so (see below).
4. In this case, Miss X complained to the Council in March 2019. She then complained to the Ombudsman in June 2020. This was premature because the Council had not completed the three-stage statutory complaints procedure. Once the Council completed the final stage, the Ombudsman took up Miss X’s complaint.
5. COVID-19 meant there were delays to this this process. For this reason, I have decided there are good reasons to exercise our discretion and investigate this complaint.

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The Ombudsman’s role and powers

6. 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)
7. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
8. If we are satisfied with a council’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)
9. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
10. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
11. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
12. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
13. 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.

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How I considered this complaint

14. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
15. I considered the relevant legislation, statutory guidance and policies, set out below. I considered the Ombudsman’s published guidance on remedies. I also considered Ombudsman guidance for councils, ‘Good Administrative Practice during the response to COVID-19’, published by the Ombudsman in May 2020 (referred to above).

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What I found

What should have happened

16. The government published statutory guidance, ‘Getting the Best from Complaints’, which sets out a three-stage procedure that councils follow when considering certain complaints about children’s social care services. The guidance sets out timescales within which certain actions should be completed.
17. The guidance says that once a complaint is made, the council should make an initial attempt to resolve matters within ten working days. The guidance says the maximum time a stage one should take is 20 working days.
18. At stage two, the council appoints an independent Investigating Officer to investigate the complaint, and an Independent Person who is responsible for overseeing the investigation. The council will appoint a senior manager to adjudicate on the findings. The guidance says that a council has 25 working days to produce the Investigating Officer’s report and its own adjudication on the Investigating Officer’s findings.
19. The guidance says this can be extended to 65 working days because in certain circumstances 25 working days may not be sufficient or practical. The guidance says the important thing is to maintain dialogue with the complainant.
20. 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.
21. The complainant can then ask the council to convene an independent review panel. This forms the third stage of the complaints procedure. The review panel will consider the adequacy of the independent stage two investigation.
22. The guidance says a council has 30 working days to arrange and hold the stage three review panel. The panel has five working days to issue its findings. The council then has 15 working days to respond to the panel’s findings.
23. If a council has investigated a complaint under this statutory procedure, the Ombudsman does not normally re-investigate the original complaints unless we consider the investigation was flawed. Instead, we will look at whether a council properly considered the findings and recommendations of the independent investigation and review panel.

What happened

24. Miss X has a child. In 2018, the Council applied to court to remove the child from Miss X’s custody. The court issued a care order, removing the child from Miss X’s custody. The child was later returned to Miss X’s care.
25. In March 2019, Miss X complained to the Council. The Council considered her complaint at stage one. It upheld three parts of her complaint, did not uphold two parts, and said it could not consider one part because it was the court’s decision to remove her child. The Council apologised for the distress Miss X experienced. It told Miss X it would provide extra training for staff to improve practice going forward.
26. Miss X asked the Council to deal with her complaint at stage two.
27. In October, the Investigating Officer submitted her report. She did not uphold Miss X’s complaints. In November, the Council sent its stage two adjudication. It agreed with the Investigating Officer.
28. Miss X responded to the stage two findings, asking the Council questions and for more information and explanation. In March 2020, the Investigating Officer sent Miss X answers, information, and more explanations of the stage two findings.
29. In May, Miss X confirmed that she wanted the Council to deal with her complaint at stage three. In June, the Council told Miss X that her complaint was on hold because of COVID-19 and the government’s restrictions and guidelines.
30. In June, Miss X complained to the Ombudsman. The Ombudsman referred the matter back to the Council to complete stage three of the complaints process.
31. In August, the Council arranged to hold the stage three review panel virtually, in October. The stage three review panel did not uphold any of Miss X’s complaints. However, it did recommend that the Council conduct an internal investigation into a possible data breach.
32. The Council agreed with the panel’s findings.
33. The Ombudsman then took up Miss X’s complaint.

Analysis

Consideration of Miss X’s complaint

34. Parts a to d of Miss X’s complaint were investigated through the statutory children’s complaints procedure. As I have said above, the Ombudsman does not normally re-investigate the original complaint unless we consider the stage two investigation was flawed.
35. I am satisfied that the Investigating Officer interviewed an appropriate range of people, and saw appropriate records and case notes. I find the investigation was thorough, well-balanced, and evidence-based. I therefore do not find the investigation was flawed.
36. In light of this, I have looked at whether the Council properly considered the findings and recommendations of the independent investigation (stage two) and review panel (stage three).
37. The Investigating Officer did not uphold any of Miss X’s complaints. Therefore, there were no recommendations at stage two. I find the Council properly considered the stage two findings.
38. The stage three review panel did not uphold any of Miss X’s complaints. However, it did recommend that the Council conduct an internal investigation into a possible data breach.
39. The Council tells me that Miss X is now taking legal action about the possible data breach. As I have said above, we cannot investigate if someone has started court action about the matter. The review panel’s recommendation has therefore been superseded by Miss X’s legal action. This means I cannot make a finding about whether or not the Council has completed the recommendation from the stage three review panel.
40. For these reasons, I do not find the Council at fault.

Timescales

41. Miss X complains that the Council failed to respond to her complaint in line with timeframes set out in law (part e of the complaint).
42. The guidance says the maximum time for a stage one complaint response is 20 working days. In this case, the Council sent its stage one response 47 working days after Miss X complained.
43. The Council recognises that it did not send its stage one complaint response within the timescales set out in law. This is fault. This fault caused Miss X injustice in that it caused uncertainty.
44. The Council says it will apologise to Miss X for this. I am satisfied that the Council has put measures in place to avoid future delays.
45. Regarding the time taken to complete stage two, I find the Council sent its stage two adjudication within 62 working days. This is in line with the guidance. I note that the guidance stresses that the important thing is for a council to maintain dialogue with a complainant during this time. I find that the Council was clear with Miss X throughout about the timescales for stage two, and remained in contact with her.
46. For this reason, I do not find there were delays at stage two.
47. Regarding stage three, I find that Miss X asked for stage three in May 2020. This was during the first national lockdown. I find that the Council arranged the stage three review panel as soon as possible after the lockdown, and in line with government restrictions and guidance. This is also in line with guidance the Ombudsman published in May 2020 (referred to above).
48. So, while the Council’s stage three consideration of Miss X’s complaint was outside the timeframes set out in paragraph 22, I do not find the Council at fault.

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Agreed action

49. Within four weeks of this decision, the Council has agreed to apologise to Miss X in writing for causing uncertainty by failing to send its stage one complaint response within the timeframe set out in law.
50. The Ombudsman will need to see evidence that this action has been completed.

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Final decision

51. I have completed my investigation and largely I do not find the Council at fault. However, I find the Council at fault for failing to send its stage one complaint response within the timeframe set out in law. I find this fault caused Miss X injustice. The Council will take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman