The Ombudsman's final decision:
Summary: There is fault in Plymouth City Council’s handling of this complaint about its refusal to agree to a request for investigation at stage 2 of the statutory children’s complaints procedure. The Council will make arrangements to consider the complaint at stage 2 of this procedure now.
- The complainant, whom I shall call Ms X, says the Council failed to properly consider her and her husband’s application for approval to adopt a child before rejecting it.
- Ms X wants an objective consideration of the facts.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I discussed the complaint with Ms X and considered the written information she provided with her complaint. We obtained copies of relevant documents from the Council. I considered all the information before reaching a draft decision on the complaint.
- I gave the Council and Ms X the opportunity to comment on my draft decision and considered their comments before reaching my final decision on the complaint.
- 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.
What I found
- The law sets out a 3 stage procedure for councils to follow when looking at complaints about children’s social care services (The Children Act 1989 Representations Procedure (England) Regulations 2006).
- “Getting the Best from Complaints” is statutory guidance for councils implementing this three stage procedure.
- Paragraph 3.1.5 of the guidance confirms that where a council accepts a complaint at stage 1 of the procedure the complainant is entitled to pursue their complaint through all three stages. It further states that councils are “obliged” to ensure that the complaint proceeds to stages 2 and 3 of the procedure once it has been accepted as a complaint eligible to be considered under this procedure at stage 1. The guidance makes it clear that a complainant may complain to this office at any time during the process.
- “Getting the Best from Complaints” confirms that the Regulations place a 10 working day time limit on dealing with complaints at stage 1 of the process. Paragraph 3.5.5 of the guidance states “Where the local authority cannot provide a complete response it can implement a further 10 days’ extension…The maximum amount of time that Stage 1 should take is 20 working days. After this deadline the complainant can request consideration at Stage 2 if he so wishes”. Paragraph 3.5.6 states “The Complaints Manager should inform the complainant that he has the right to move on to Stage 2 if the time scale has elapsed for Stage 1 and the complainant has not received an outcome”. Paragraph 3.5.7 says the if the matter is resolved “the local authority must write to the complainant confirming the agreed resolution and the Complaints Manager should be informed of the ooutcome as soon as possible. Otherwise a letter should be sent by the local authority to the complainant…responding to the complaint”. Paragraph 3.5.8 goes on to say “Where the matter is not resolved locally, the complainant has the right to request consideration of the complaint at Stage 2”.
- The procedure does allow for early referral to the Local Government Ombudsman in certain circumstances after the completion of stage 2 of the process. The guidance states that, in order to consider this “stage 2 must have delivered:
- a very robust report;
- a complete adjudication;
- an outcome where all complaints have been upheld...and,
- ...the local authority agrees to meet the majority or all of the desired outcomes presented by the complainant...”
- In May 2017 Ms X and her husband, Mr X, complained to the Council about the way their application to adopt a child was handled and they were treated. Specifically they complained about the handling of personal information gathered in the assessment process and the failure of the assessing social worker to adhere to the parameters agreed for the assessment process. They added to their complaint following their attendance of the adoption panel where they did not receive approval to be adopters and then again in July 2017.
- The Council provided a response to the complaint in late September. Whilst this letter does not specifically state the response was being provided under the children’s statutory complaints process, it refers to this process at the end of the letter stating that if Mr and Ms X were dissatisfied with the response they could ask for the matter to be considered at stage 2 of this procedure. Mr and Ms X provided their response stating why they were dissatisfied with the response and asked for the matter to be considered at stage 2 of the procedure.
- The Council refused to progress the matter to investigation at stage 2 of the statutory complaints procedure. In its response in November the customer relations officer acknowledged the long time it had taken to consider the complaint at stage 1 of the complaints procedure and apologised that the Council had not kept them fully updated on progress during this period. She also said she had initially offered Mr and Ms X a meeting to discuss the complaint following the response at stage 1 but said this was cancelled due to a problem with the building where the meeting would take place and she said she would therefore go on to consider the stage 2 request on order to avoid delaying consideration of the complaint. She went through the complaint in some detail and summarised Mr and Ms X’s comments on the findings of the stage 1 investigation commented further on this. She went on to state “…unfortunately I do not believe a formal investigation would provide a different outcome to the investigation already carried out and would not achieve the outcomes you are seeking…”.
Is the Council at fault and did this cause injustice?
- It seems clear the Council started consideration of this complaint under the statutory complaints procedure. The Council delayed in providing a response at stage 1 of the complaints procedure and this amounts to fault. The regulations state that complaints should be dealt with within 10 days at stage 1 and it this is not possible the complainant should be offered the opportunity to progress to stage 2. There is no evidence this happened. It took the Council around four months to provide a response at stage 1 and this amounts to fault.
- There are no grounds for the Council to refuse to consider Mr and Ms X’s complaint at stage 2 of the statutory complaints procedure. I consider the Council should have made arrangements to consider the complaint at stage 2 of the procedure when Mr and Mrs X requested it. As the Council is aware, the requirements relating to the children’s complaints procedure are set out in 2006 legislation: the Children Act 1989 Representations Procedure (England) Regulations 2006. Regulation 15 states that where a council and a complainant have not resolved matters at stage 1, the complainant may ask for his complaint to be considered at stage 2. He may make this request orally or in writing. Regulation 17 states that where a complainant has made a request under Regulation 15 “…then the local authority must consider the regulations in accordance with this Regulation”. Neither the Regulations nor the guidance requires the complainant to detail the outcomes they seek. The Regulations do not allow the Council to divert from them because it considers the likely outcome might be the same as that reached at stage 1.
- I do not consider I or the Council can say with any certainty what conclusions or recommendations an independent investigation may reach so cannot agree there is any basis for the Council to decide that it is unlikely an independent investigation would reach a different outcome.
- The Council will make arrangements to consider the complaint at stage 2 of the statutory complaints procedure as soon as possible.
- Within four seeks of the date of the final decision on the complaint the Council will:
- apologise to Ms X for its poor handling of the complaint and pay her £150 to recognise the avoidable delay and time and trouble she has been caused in having to complain to this office in order to have the matter resolved; and
- ensure that it is progressing complaints under the complaints procedure according to the Regulations and provide us with evidence to demonstrate how it will do this.
- The Council is at fault in its handling of the complaint under the statutory complaints procedure and this caused Ms X injustice.
Investigator's decision on behalf of the Ombudsman