Summary: Ms B, with the support of a representative, complains the Council failed to consider her complaint under the Children Act 1989 complaints procedure. This caused Ms B injustice because her complaint was not dealt with as it should have been. The Ombudsman finds the Council at fault for failing to follow the statutory complaints procedure. To remedy Ms B’s injustice, the Council have agreed to consider Ms B’s complaint at stage 2 of the procedure.

The complaint

1. Ms B, with the support of a representative, complains the Council failed to consider her complaint under the Children Act 1989 complaints procedure. This caused Ms B injustice because her complaint was not dealt with as it should have been.

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What I have investigated

2. I have investigated whether the Council followed the correct complaint procedure.
3. I have not investigated Ms B’s complaint about her education and health care plan (EHCP), learning disability support plan or neglect while in local authority care. The final section of this statement contains my reasons for this.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), 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:
• Ms B’s complaint and the information provided by her representative;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• Ms B and the Council reviewed a confidential draft of this decision and comments received were considered before the decision was finalised.

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What I found

8. Section 26(3) of the Children Act, 1989 says all functions of the local authority under Part 3 of the Act may form the subject of a complaint under the statutory complaints procedure.
9. Section 26(3) and section 24D of the Children Act, 1989 and section 3(1) of the Adoption and Children Act, 2002 require the responsible authority to consider representations including complaints made by children leaving care.
10. A complaint may arise about statutory social services functions, including:
• an unwelcome or disputed decision;
• concern about the quality or appropriateness of a service;
• delay in decision making or provision of services;
• delivery or non-delivery of services including complaints procedures;
• quantity, frequency, change or cost of a service;
• attitude or behaviour of staff;
• application of eligibility and assessment criteria;
• the impact on a child or young person of the application of a local authority policy; and
• assessment, care management and review.

(Department of Education, 2006, Statutory guidance for local authority children’s services on representations and complaints procedures)

11. The handling and consideration of complaints under the Children Act 1989 consists of three stages: Stage 1 - Local Resolution, Stage 2 - Investigation and Stage 3 - Review Panel. (Department of Education, 2006, Statutory guidance for local authority children’s services on representations and complaints procedures)
12. In March 2015, the LGO published a thematic report highlighting learning from its investigations into the Children Act complaints system, ‘Are we getting the best from children’s social care complaints?’. A common issue raised was the failure of councils to identify a children’s services complaint. The report gave councils advice about how to avoid this fault.

What happened

13. Ms B is a care leaver and in 2015 she moved from Islington to Haringey.
14. In November 2018, Ms B’s representative made a complaint to the Council about the delay in issuing Ms B an EHC plan and a learning disability support plan. Ms B’s representative also complained that she was neglected while in local authority care.
15. In November 2019, the Council responded to the complaint following its corporate complaint procedure. Ms B’s representative then brought the complaint to the Ombudsman.

Analysis

16. Ms B is a care leaver complaining about the service she received from the Council’s children’s services and education departments. She is therefore entitled to access the statutory complaints procedure; see paragraph 10. Based on the information available, the Council has not adhered to the 1989 Children Act complaint procedure and this is fault.
17. The substantive part of Ms B’s complaint is about:
• the quality of services;
• delay in decision making or provision of services;
• delivery or non-delivery of services including complaints procedures; and
• assessment, care management and review.

These are all Council responsibilities that fall within Part 3 of the Children Act 1989; see paragraph 9.

18. This fault is disappointing given the advice provided to local authorities on this topic by LGO four years ago.

Agreed action

19. Within 25 working days of the final decision, the Council will consider Ms B’s complaint at stage 2 of the statutory complaint procedure. If Ms B and/ or her representative wishes, the Council should progress the complaint to stage 3.

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Final decision

20. I have completed my investigation and uphold Ms B’s complaint. Ms B has been caused an injustice by the Council for failing to investigate her complaint under the Children Act 1989 complaints procedure. The Council has agreed to take action to remedy that injustice

Parts of the complaint that I did not investigate

21. I have not investigated the complaint about Ms B’s education and health care plan (EHCP), learning disability support plan or neglect whilst in local authority care because the Council should consider it under the statutory complaint procedure first. Ms B, or her representative, can bring her complaint back to the Ombudsman if they are not satisfied with the Council’s complaint response.

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Investigator's decision on behalf of the Ombudsman