Hertfordshire County Council (19 011 650)

Category : Adult care services > Transition from childrens services

Decision : Upheld

Decision date : 04 Feb 2020

The Ombudsman's final decision:

Summary: Miss X complains the Council acted with fault in moving her from a placement at age 18 when she did not wish to move. The Council has failed to consider her complaint properly under the statutory procedure for complaints by or on behalf of children. It will arrange an investigation at Stage 2 of this procedure immediately.

The complaint

  1. Miss X is a former looked-after child represented by an advocate. She complains the Council was at fault in moving her from a foster care placement at age 18 when she did not wish to move.

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What I have investigated

  1. I have investigated whether the Council has properly considered Miss X’s complaint. I give my reason for not investigating the substantive matter complained of at the end of this statement.

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The Ombudsman’s role and powers

  1. 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)
  2. 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
  3. 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

  1. I read Miss X’s complaint and spoke to her advocate and the Council on the telephone. I took account of statutory guidance, Getting the Best from Complaints 2006. I also took account of previous cases (17 001 624 and 17 001 627) where the Council failed to consider complaints under the procedure laid out in Getting the Best from Complaints 2006. I shared a draft of this decision with both parties and invited their comments. Both parties accepted the draft decision.

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What I found

What should have happened?

  1. Councils with social care responsibilities must use the statutory complaints procedure for children’s social care complaints. This procedure is laid out in Getting the Best from Complaints 2006.
  2. Where a complaint is covered by this procedure and the person is entitled to complain, a council must follow a formal three-stage procedure.
  3. The first stage has a maximum of 10 working days (with an extra 10 days for a complex complaint) and involves a written response from the council. Where a council upholds all the parts of a complaint, it does not have to deal with it further. Otherwise, if a complainant wants to move the complaint to the second stage, the council must do so. This also applies where the council runs out of time at the first stage.
  4. There is a 25 working-day timescale for the second stage, which is in the form of an investigation. But this can be extended to 65 working days in complex cases if the complainant agrees. This timescale starts on the day a council receives the second-stage request, if it is in writing. It starts on the day the complainant agrees the complaint wording with the investigator, if the request to escalate is verbal. Councils must appoint an investigating officer, who may work for the council, but have no involvement with the staff involved in the complaint. Alternatively, many councils chose to appoint persons who are not members of staff. In either case, councils must also appoint an independent person to ensure impartiality in the investigation. The 25 or 65 working day period also includes any time taken for a senior officer to adjudicate the investigating officer’s report and write to the complainant with the decision.
  5. Where a council and the complainant are both happy to do so, the complainant may ask the Ombudsman to consider the matter after the second stage ends. Where either party ask for the third stage, it is mandatory. This is a panel hearing. The hearing does not re-investigate the complaint. Instead, it considers whether the second-stage investigation was properly conducted. It must be held within 30 working days of a request from the complainant.
  6. Getting the Best from Complaints 2006 also states that placement moves can be frozen until a complaint about that has been considered. The presumption should be in favour of freezing, unless there is a good reason against, such as risk to the young person from staying put. The Council must, however, take care if freezing a placement move is likely to have a significant effect on a young person’s mental health.

What happened, and was this fault?

  1. Miss X was a looked-after child. Her advocate made a written complaint to the Council on 29 May 2019. This concerned where Miss X would live when she turned 18. Receiving no reply, the advocate sent a further written complaint on 18 July 2019. By this time, the Council had exceeded the first-stage timescale. This was fault.
  2. In the advocate’s second letter, she asked for the complaint to be escalated to the second stage of the statutory procedure. She also asked the Council to freeze the placement move, which had become imminent.
  3. The Council replied to both complaints on 15 August 2019. Its letter stated there had been some fault and partly upheld the complaint. It declined to freeze the placement move, but it gave no reason for the refusal. The refusal to freeze the placement move while dealing with the complaint was thus fault.
  4. When I spoke to the Council, it told me Miss X had been unable to engage properly with assessments due to mental health difficulties. The Council said it had tried to work with Miss X and her advocate to find a solution.
  5. The Council has not used the second stage of the statutory procedure. Regardless how well-intentioned its action in trying to engage Miss X by other means, it was at fault by not also appointing an investigating officer and independent person to consider the matter when it received the advocate’s letter of 18 July 2019.
  6. It is of concern that this is not the first time the Council has failed to adhere to the statutory process for dealing with social care complaints by or on behalf of children. It is not for the Council to substitute its own methods for statutory guidance.

Did the fault found cause injustice?

  1. As the Council has not yet investigated Miss X’s complaint, it is not possible to say if she has suffered an injustice as a result of the fault.

Agreed action

  1. The Council will immediately begin a second stage investigation in accordance with the procedure laid out in Getting the Best from Complaints 2006.
  2. To prevent a further repeat of the fault, within a month of our decision, the Council will remind those who deal with children’s social care complaints that:
  • They must deal with complaints received about social care via the statutory process, unless the matter is not one for that process, or the person complaining does not have the right to complain under it;
  • While they may offer mediation or other informal methods to resolve complaints alongside the statutory process, this must not be instead of the statutory process, or delay the statutory process at any stage;
  • Where the Council fails to respond to a written complaint in 20 working days, the complaint has the right to request escalation to the second stage of the statutory process;
  • Where the request for escalation to the second stage is in writing, they must treat the day of receipt as the first day of the second stage investigation; and
  • The second stage investigation has a timescale of 25 working days, or 65 working days in complex cases where the complainant agrees to the extension.

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Final decision

  1. I have upheld the complaint about the Council’s complaint handling and close the case as the Council has agreed to take the recommended action.

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Parts of the complaint that I did not investigate

  1. I have not investigated the substantive complaint about the move. This is because the Council should use the statutory complaints procedure to properly investigate the complaint. If Miss X is dissatisfied once the Council has completed the statutory process, she is welcome to return to us. She should do so promptly, unless there is a good reason that prevents her.

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Investigator's decision on behalf of the Ombudsman

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