The Ombudsman's final decision:
Summary: Mr and Mrs X complained about a lack of support from the Council leading up to and following an adoption breakdown. They are unhappy the Council has refused to investigate their complaint at stage two of the statutory complaints procedure. The Council’s refusal to consider their complaint at stage two of the statutory complaint procedure is fault. This denied Mr and Mrs X the opportunity for independent oversight of their complaint.
- The complainants, whom I shall refer to as Mr and Mrs X complained about a lack of support from the Council leading up to and following an adoption breakdown. They are unhappy the Council has refused to investigate their complaint at stage two of the statutory complaints procedure.
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)
- 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.
How I considered this complaint
- I considered the information submitted by Mr and Mrs X and spoke to Mr X on the telephone. I have referred to relevant guidance, which supports the Children Act 1989 and subsequent Acts. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Law and Guidance
- The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. Stage One (which is normally a response by a manager), Stage Two (involving an investigating officer and an independent person) and a Stage Three Panel. The accompanying statutory guidance, Getting the Best from Complaints, explains councils’ responsibilities in more detail.
- There is a duty on councils to act expeditiously throughout the procedure. Councils should generally provide a response at Stage 1 within 10 working days and at Stage 2 within 25 working days (or exceptionally within 65 working days). The Council should call a review panel at Stage 3 within 30 working days.
- The guidance says once a council has accepted a complaint at stage one, it must ensure the complaint continues to stages two and three if that is the complainant’s wish. The decision about progressing to stage two lies with the complainant, and not the council. There is no provision in the regulations or the guidance to refuse a stage two complaint because the stage one complaint was upheld, or because the council thinks nothing further can be achieved.
- The Ombudsman would normally expect a council and complainant to follow the full complaints procedure. The guidance sets out the circumstances in which a complaint can be referred to the Ombudsman without completing all three stages. This can only happen when the stage two investigation is robust with all complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.
What happened here
- In March 2020 Mr and Mrs X complained about a lack of support from the Council over a period of three years, leading up to and following an adoption breakdown. The Council appointed an officer to investigate their complaint, who contacted Mr and Mrs X to discuss their complaint and how it would be investigated.
- Mr and Mrs X were unhappy with the way the officer had defined the scope of their complaint. They did not consider it was full enough as it did not include many issues they had complained about. Mr and Mrs X were also concerned about the length of time being taken to investigate their complaint. In June 2020 they asked the Council to escalate their complaint to stage two of the complaint process.
- The Council acknowledged it had not progressed Mr and Mrs X’s complaint within its usual timescales. It suggested there should be some tolerance within the timescales given the ongoing pandemic situation. The Council considered it reasonable to continue the stage one investigation and confirmed there would be a further short delay in issuing the response. It would only consider a request to escalate to stage two when Mr and Mrs X had considered the stage one response.
- The Council responded to Mr and Mrs X’s complaint in July 2020. Mr and Mrs X were not satisfied by this response and asked for their complaint to be considered at stage two. In September 2020, the Council refused to proceed to stage two on the following grounds:
- Many of the issues Mr and Mrs X had raised were outside the usual 12 month timeframe for investigating;
- It had upheld/ partially upheld nearly all of Mr and Mrs X’s complaints with clear learning identified;
- It would be more appropriate to deal with Mr and Mrs X’s dissatisfaction with the Council’s record keeping by way of a right to rectification request to the Council’s Data Protection officer;
- Many of Mr and Mrs X’s concerns about how the Council communicates with parents had been addressed since their experience, and this would be reviewed again.
- The Council’s failure to begin a stage two investigation is fault. Having accepted Mr and Mrs X’s complaint at stage one, the Council was obliged to ensure their complaint progressed to stage two when they requested this. Mr and Mrs X have been denied the opportunity for independent oversight at stage two and have been put to the time and trouble of contacting the Ombudsman to seek redress.
- When we find a council has not followed the statutory complaint procedure, we usually recommend it carries out the next stage of the procedure without further delay.
- I recommend the Council:
- apologises to Mr and Mrs X for refusing to progress their complaint to stage two of the complaints procedure.
- pays Mr and Mrs X £100 in recognition of the distress, and time and trouble they have experienced as a result of the refusal to progress to stage two of the complaints process.
- starts a stage two investigation of Mr and Mrs X’s complaint.
- The Council’s refusal to consider Mr and Mrs X’s complaint at stage two of the statutory complaint procedure is fault.
Investigator's decision on behalf of the Ombudsman