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

The complaint

1. Mr B, with the support of a representative, complains the Council failed to consider his complaint under the Children Act 1989 complaints procedure. This caused Mr B injustice because his 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 Mr B’s complaint about transition planning. 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. 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. 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)
7. 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

8. We considered:
• Mr B’s complaint and the information provided by his representative;
• documents supplied by the Council:
• relevant legislation and guidelines; and
• Mr B’s representative and the Council reviewed a confidential draft decision and comments received were considered before the decision was finalised.

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What I found

Legislation and Statutory Guidance

9. 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 children’s social care complaint procedure.
10. 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.
11. A complaint may arise about statutory children’s 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)

12. 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)
13. In March 2015, the LGSCO 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

14. Mr B is a care leaver and is allocated to the Council’s Leaving Care Team.
15. In October 2018, Mr B’s representative made a complaint to the Council about transition planning.
16. In January 2019, the Council responded to the complaint following its corporate complaint procedure. Mr B’s representative then brought the complaint to the Ombudsman.
17. In March and May 2019, the Ombudsman asked the Council to consider the complaint following its statutory children’s social care complaint procedure.
18. The Council refused to consider the complaint under its statutory children’s services complaint procedure. It said the complaint was about the Council’s adults with learning disabilities service and was correctly investigated under the Local Authority Social Services and National Health Services complaint (England) Regulations 2009. The Council did not accept an element of the complaint was about Mr B’s transition from children’s to adult services.

Analysis

19. Mr B is a care leaver complaining about transition planning and therefore entitled to access the statutory children’s social care complaints procedure; see paragraph 10. The Council did not adhere to the 1989 Children Act complaint procedure and this is fault.
20. The substantive part of Mr B’s complaint is about transition planning. This is one of the Council’s responsibilities that falls within Part 3 of the Children Act 1989; see paragraph 9.
21. This fault is particularly disappointing given the two specific requests made by the Ombudsman to consider this complaint under the statutory procedure, and the clear advice for local authorities published on this topic by LGSCO four years ago.

Agreed action

22. Within 25 working days of the final decision, the Council will consider Mr B’s complaint using the statutory children’s social care complaint procedure. If Mr B and/ or his representative wishes, the Council will progress the complaint to stage 3.

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Final decision

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

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Parts of the complaint that I did not investigate

24. I have not investigated the complaint about transition planning because the Council should consider it under the statutory complaint procedure first. Mr B, or his representative, can bring his 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