Summary: The Ombudsman finds fault with the way the Council handled Mrs B’s request to progress her complaint to stage two of the children’s services statutory complaints process. This means Mrs B was denied an independent investigation. The Council agrees actions to remedy the injustice.

The complaint

1. Mrs B complains on behalf of her son, Mr C. She complains about the Council’s refusal of a Disabled Facilities Grant (DFG) for Mr C between 2012 and 2017. She also complains the Council refused to take her complaint at stage two of the statutory complaint’s procedure.
2. Mrs B says the grant refusal left the family without the correct facilities to meet Mr C’s needs.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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

7. I considered all the information provided by Mrs B and the Council along with the relevant law and guidance.
8. Mrs B and the Council had the opportunity to comment on my draft decision. I carefully considered the comments I received before reaching a final decision.

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What I found

Law and guidance

Disabled Facilities Grants (DFG)

9. A DFG is awarded by the housing authority to make adaptations to the home which are ‘necessary and appropriate’ to meet the disabled occupant’s needs, where it is ‘reasonable and practicable’ to carry out such adaptations.
10. Usually the housing authority relies on the opinion of an occupational therapist to decide what is ‘necessary and appropriate’. Where the disabled occupant is a child, the housing authority may also consult children’s services. There should be a local protocol to provide a clear application process for applicants and authorities to follow.
11. A DFG should be decided within six months of receipt of ‘a completed valid application and of any additional information [required]’. It is up to councils to decide what amounts to a valid application.

Statutory complaints procedure

12. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, Getting the Best from Complaints, explains councils’ responsibilities in more detail.
13. The guidance says who can complain and what they can complain about. This includes disputed decisions, concerns about the appropriateness of a service, and the application of eligibility criteria.
14. The Council has discretion to decide whether considering a complaint would prejudice other proceedings. If it decides not to consider, or further consider, complaints subject to these concurrent investigations, it must write to the complainant explaining the reason for their decision and specifying the relevant concurrent investigation.
15. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. The guidance says once a council has accepted a complaint at stage one, it must ensure the complaint continues to stage two and three if that is the complainant’s wish.
16. At stage two of the procedure, councils appoint an investigating officer (IO) and an independent person (IP) who is responsible for overseeing the investigation. 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.
17. The Ombudsman would normally expect a council and complainant to follow the full complaints procedure. The guidance sets out the circumstances in which a complaint can be referred to the Ombudsman without completing all three stages. This can only happen when the stage two investigation is robust with all complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.
18. In the Ombudsman focus report ‘Are we getting the best from children’s social care complaints?’ (2015) we found a common problem was councils refusing to allow complaints to go through all stages of the statutory complaint’s procedure.

What happened

19. In 2011 Mr C was nine years old. His needs were assessed by an occupational therapist and he was not identified as needing any major adaptions to his home.
20. Mr C was reassessed six years later. His growth and further disability related issues and diagnoses identified the need for home adaptions. A DFG application was made in 2018 and awarded in 2019.
21. In 2017 Mrs B complained to the Council about its failure to provide a DFG earlier. The Council accepted Mrs B’s complaint at stage one of the statutory process. The Council said following the assessment in 2011 it did not receive any further requests for assessment. It says the assessment of need is based on the occupational therapist report.
22. Mrs B disagrees she says between 2012 and 2017 she repeatedly emailed the Council about the DFG and additional help and support. She says the Council did not recommend applying for a grant. She also says she was not given a reason or reply to her queries.
23. There are no records of any further contact from Mrs B about this complaint until 2019. The guidance says there is no time limit on requesting a stage two investigation. Despite the lengthy gap between the stage one response and request to escalate the Council did offer Mrs B a stage two investigation.
24. In June 2019 Mrs B sent a ‘letter before a claim’ notification to the Council. She says the Council’s failure to identify Mr C’s needs and provide the DFG earlier caused sleep deprivation, anxiety and stress over a prolonged period. Mrs B asked for compensation in recognition of this.
25. The Council told Mrs B how to submit a claim for compensation and how to complain. It explained if she made a compensation claim it would wait until this was finalised before processing her complaint.
26. In May 2020 Mrs B decided not to make a compensation claim and asked the Council to consider the complaint through its complaint process. The Council sent Mrs B its statutory stage two complaint request form.
27. In June 2020 the Council wrote to Mrs B. It said it did not accept her request to progress to stage two because she failed to provide the information it requested.
28. Mrs B was unhappy with the Council’s response and complained to the Ombudsman.

My findings

29. I find fault with the way the Council handled Mrs B’s complaint.
30. The primary legislation for DFG is part one of the Housing Grants, Construction and Regeneration Act 1996. This is not one of the areas covered by the children’s services statutory complaint process. However, councils can use discretion to consider complaints under this process. In this case the Council decided it was appropriate to use the statutory complaint procedure and we would not criticise this decision.
31. Once the Council decided to use the statutory complaint procedure it should follow the correct process at each stage. The problem arose at stage two when the Council refused to proceed because it said Mrs B:
• did not identify the points of the stage one complaint she wished to escalate to stage two; and
• requested an outcome the statutory stage two process cannot provide (the outcome of the DFG).
32. The guidance outlines when the Council should commence a stage two investigation and what the process is:
• Stage two commences either when the complainant requests it or where the complainant and the Council have agreed that stage one is not appropriate.
• If the complaint has been submitted orally, the Complaints Manager must ensure that the details of the complaint and the complainant’s desired outcome are recorded in writing and agreed with the complainant. This may be achieved either by correspondence or by meeting the complainant to discuss, followed by a written record of what was agreed. He may wish to do this in conjunction with the Investigating Officer and Independent Person appointed to conduct stage two. Should the complainant amend the written record of his complaint, the stage two timescale will start from the date that the complaint is finalised.
33. Establishing the complaints to be investigated and desired outcomes is part of the stage two process and not a prerequisite to commencing stage two. This part of the process is there to ensure the complaint is understood and is agreed by both parties. It should not be used to filter complaints out of the process. Mrs B had submitted her complaint in writing.
34. By failing to consider Mrs B’s complaint at stage two the Council denied Mrs B an independent investigation into her complaint and caused her additional time and trouble pursuing her complaint with the Ombudsman.

Agreed action

35. Within one month of my final decision the Council agrees to:
• Pay Mrs B £150 for her time and trouble pursuing her complaint.
• Appoint an Investigating Officer and Independent Person to investigate Mrs B’s complaint at stage two of the statutory complaint procedure.
36. Within two months of my decision the Council will remind staff dealing with statutory complaints of:
• The parts of the Children Act 1989 and associated legislation that can be subject to a statutory complaint.
• The process of escalating a complaint through the statutory procedure, and the limited circumstances in which the Council is not required to investigate a complaint, or can refer a complaint early to the Ombudsman.

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Final decision

37. I find fault with the Council causing injustice. The Council agrees actions to remedy the injustice.

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Parts of the complaint that I did not investigate

38. I did not investigate the Council’s actions in relation to the assessment of Mr C’s needs and DFG between 2012 and 2017. I recommend the Council now investigates this matter. Once Mrs B’s complaint has completed the statutory complaints procedure, she can ask the Ombudsman to consider her substantive complaint if she remains dissatisfied

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Investigator's decision on behalf of the Ombudsman