Summary: We found fault with the Council for failing to conduct the independent investigation it committed to. This denied Mr B the opportunity to have his complaint considered independently from the Council. The Council agreed to appoint an independent investigator.

The complaint

1. Mr B complained about the Council’s involvement with his family due to safeguarding concerns. He said the Council failed to carry out an independent investigation of his complaints.
2. Mr B said the Council’s involvement caused distress and prevented him providing care to his elderly relative.
3. He also said the Council denied him the opportunity to have his complaint considered independently. He experienced the additional delay, time and trouble of bringing his complaint to the Ombudsman.

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The Ombudsman’s role and powers

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)

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How I considered this complaint

6. I considered the information Mr B provided with his complaint. I made enquiries with the Council and considered its response with relevant law and guidance.
7. Mr B and the Council had the opportunity to comment on my draft decision. I carefully considered the comments I received before making a final decision.

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What I found

Law and guidance

Adult social care complaints

8. The Care Act 2014 and the Care and support statutory guidance were introduced in April 2015. This is the law on which adult social care in England is based and the Council must follow.
9. The social care complaints process is based on the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009.
10. The regulations require the Council to have a complaints procedure. It can design its own procedure, but it must meet the requirements of the complaints regulations.

Council complaints procedure

11. The Council procedure says:
12. When it receives a complaint it will consult with relevant staff to decide if the complaint should be dealt with under a separate process, e.g. safeguarding. If it is decides to deal with the issues outside of the complaints process the complainant will be advised of this decision.
13. The complaint will then be referred to the relevant manager / organisation for investigation. Staff will attempt to resolve the problem within 20 working days of receipt of the complaint. At times this may not be possible if the complaint is complex or there are other extenuating circumstances that will delay the investigation.
14. The complainant can request a review of the Council’s complaint in some circumstances. The review is carried out by a more senior officer. A response should be provided within 20 days.
15. In some circumstances it may be necessary to appoint an independent investigator to look into a complaint. In such circumstances the investigator will contact the complainant to agree the issues to be investigated before commencing their investigation. The decision to appoint an independent investigator will be made by the Chief Officer of Adult Social Care in conjunction with relevant staff.
16. If the Council is unable to resolve the complaint it will direct the complainant to the Ombudsman.

What happened

17. What follows is a brief chronology it does not contain all the information I reviewed during my investigation.
18. Mr B is the main carer for an elderly relative. He also has power of attorney in respect of their finances and health. Prior to this complaint Mr B already had other complaints about safeguarding and care upheld by the Ombudsman.
19. In January 2021 Mr B complained to the Council about its involvement and actions in connection with safeguarding, assessments and access to his relative’s address. He told the Council he wanted his complaints independently investigated.
20. The Council responded at stage one of its complaint process but Mr B remained dissatisfied and asked for his complaint to be escalated. He was unhappy that his complaint was considered by the same person as previous complaints. He repeated his request for an independent investigation.
21. In April 2021 the Council agreed to appoint an independent investigator. The investigator contacted Mr B to begin the investigation process.
22. In May 2021 the investigator said they were no longer able to continue with the investigation. The Council told Mr B it was unable to continue with the investigation and it closed his complaint. It referred him to the Ombudsman.

My findings

23. I found fault with the Council for failing to carry out the independent investigation it committed to.
24. Appointing an independent investigator for adult social complaints is not a statutory requirement. The Council had discretion to do this as part of its own complaint process.
25. I asked the Council why it chose to appoint an independent investigator for Mr B’s complaint. It said:

“…the authority (Council) made the decision that an appointment of an independent investigator would show independence from the authority and who could look at all aspects of the complaints, dissatisfaction and provide an independent response”.

26. I agree with the Council’s decision. In this case it made sense for an investigator who was independent from the Council to carry out the investigation. However, when the investigating officer told the Council they could not continue with the investigation it made no attempts to find a replacement and referred Mr B to the Ombudsman.
27. While Mr B’s own actions contributed to the situation, the Council failed to communicate effectively with Mr B and closed his complaint. The Council should have considered how to manage the situation and find an alternative investigator or solution.
28. If it felt Mr B was being unreasonable it should have considered how it managed the communication with Mr B and his communication with the Council and the investigator. If necessary, it should have referred to its relevant policy to achieve this.
29. It is not a sustainable approach to close the complaint and shut down communication with Mr B. He has other complaints at different stages, so the Council needs to find a way to move forward and consider this complaint and any others Mr B has made since. It may be appropriate to combine all the unresolved complaints as part of one independent investigation. That is a decision for the Council and independent investigator to make.

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Agreed action

30. Within one month of my final decision the Council agrees to:
• Appoint an independent investigator and agree the scope of the investigation.
31. The Council should provide the Ombudsman with evidence it has completed the agreed actions within the timeframe.

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Final decision

32. I find fault with the Council causing injustice.

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Parts of the complaint that I did not investigate

33. I did not investigate the substantive issues at the centre of Mr B’s complaint to the Council. If Mr B remains dissatisfied after the independent investigation, he can bring his complaint to us and we will consider whether we can, and should, investigate.

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Investigator's decision on behalf of the Ombudsman