The Ombudsman's final decision:
Summary: Mr G complained the Council failed to arrange for its insurers to contact him so he could make a claim for unfair loss of income that the family sustained while fostering to adopt. There was fault in the significant delay in the insurers acting, which the Council did not oversee.
- The complainant, whom I shall call Mr G, says the Council unfairly asked his wife, Mrs G, to extend her adoption leave by five months, while they were fostering a child (with the aim of adopting her) from July 2015 until November 2016, at which point the child was returned to her mother by the court. The extension of leave caused the family a loss in income totalling, according to Mr G, some £18,000.
- Mr G made other complaints about the Council’s handling of the case; some elements of which were raised in court.
- Mr G made a formal complaint to the Council in January 2019. The Council met with him to discuss the complaint but then suggested that he made a claim for compensation against its insurers. This has only just moved forward. The Council made a payment of £500 to remedy Mr G’s time, trouble and distress.
What I have investigated
- I have investigated the third part of Mr G’s complaint in relation to the loss of family income. I have not considered the other points of complaint. I explain why I have not done so at the end of this statement.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) The matters complained of date from 2015 to 2016. However, Mr G’s discussion with the Council about resolving the complaint took place in 2019 and I am considering matters from then.
- We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended) This is specifically in relation to the fostering to adopt process Mr G went through in 2015/6, which was a court matter.
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended).
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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.
- 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 considered the information submitted by Mr G including complaint correspondence with the Council. I have also spoken to him on the telephone. I sent Mr G and the Council a copy of my draft decision and took account of any comments they made before reaching a decision.
What I found
- Mr G made a complaint to the Council in January 2019 in relation to its actions through the time he was fostering to adopt a child in 2015-2016.
- There were four key elements to this complaint: that the process took too long because of Council fault, that the family was caused undue stress because of the length of time it took; that the Council had advised Mrs G to take additional adoption leave causing financial loss and the Council’s lack of support through the transition process when the child left their care.
- Given the complaint covered children’s matters, the Council allocated an independent investigating officer and an independent person to investigate at Stage Two of the statutory complaints process. This is set out in ‘Getting the best from complaints’ (2006), which details how complaints about children’s matters should be considered.
- Mr G’s meeting with the investigating officer and independent person in February 2019 highlighted that compensation was the most important aspect needing resolution. Because of this, the Council decided it would not be appropriate to investigate Mr G’s complaints further. An email to Mr G in March said ‘compensation of this nature is generally dealt with via a separate claims procedure handled by the Council’s insurers. However…consideration may be given to your time and trouble in pursuing the complaint and any distress or injustice which you feel may have been caused as a result’.
- An email in May provided Mr G with details of how to make a claim to the Council’s insurer and agreed to make a payment of £500 for time, trouble and distress. It advised Mr G he would need legal advice to help him make the claim.
- Mr G has only just now heard from the Council’s insurers.
What should have happened
- It was good practice for the Council to consider investigating Mr G’s complaints at Stage Two of the statutory complaints process. Although there was a time lag of nearly a month between allocating the investigating officer and independent person, and them meeting Mr G, it was a good idea to try to dig deeper into how to resolve the complaint.
- Once it was decided that financial loss was the most important aspect, the way to seek resolution should have been conveyed to Mr G earlier. It took from the meeting with the investigating officer and independent person on 22 February 2019 until 10 May 2019 to explain to Mr G how to make a claim. The delay is fault and it caused Mr G time and trouble.
- Once the Council decided to refer the matter to its insurers, there should have been a means of ensuring they dealt with the matter promptly. Mr G did not hear from the insurers until earlier this year. This is fault. Although I understand the Council’s view that this falls out of the complaints process; the complaint was to be remedied by Mr G making a claim. The complaint had not been remedied until Mr G could pursue the claim once the insurer got in touch with him. The Council’s failure to ensure action was taken by its insurer in a timely way is fault. This fault has caused Mr G time and trouble.
- The Council will tell me how it intends to monitor cases such as these in the future to minimise the time lag between a matter being referred to its insurer and appropriate action being taken. It will provide this information within three months of the date of my decision.
- The Council should apologise to Mr G for the time and trouble the delay has caused him. Although it previously gave him a remedy of £500, given the amount of time since that he has waited to hear from the Council’s insurer I consider a further remedy of £200 is appropriate and reasonable. The Council should make this payment within a month of the date of my decision.
- There is evidence of fault leading to injustice. The Council has agreed actions to remedy this fault.
Parts of the complaint that I did not investigate
- I did not investigate the other aspects of Mr G’s original complaint. This is because the Council had already considered that the financial aspect of reimbursement of lost income was the most important issue. This gave the Council good reason not to conduct a formal investigation into his complaint at the time it was made.
Investigator's decision on behalf of the Ombudsman