Decision : Upheld
Decision date : 29 Mar 2018
The Ombudsman's final decision:
Summary: Mr X complained the Council failed to provide him with proper advice about his options when it told him to leave his family home. There is no fault in how a stage 3 panel dealt Mr X’s complaint about the Council’s actions when it received allegations he assaulted his son. The panel made recommendations which remedy the impact of delays in complaints processes and lack of information provided to Mr X and his family. The stage 3 panel failed to address Mr X’s complaint about content of the stage 2 investigation report. The Council should delete the relevant content as it is irrelevant to the investigation and apologise to Mr X.
- Mr X complains the Council forced him to leave his home when it received allegations that he had assaulted his son. Mr X is unhappy with inconsistencies in the Council’s investigation of his complaint and says it has not provided him with a suitable remedy.
The Ombudsman’s role and powers
- 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)
- 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 have spoken to Mr X about his complaint and considered the information he has provided to the Ombudsman. I have also considered the Council’s response to his complaint and its response to my enquiries. This includes the Council’s records of contact with Mr X.
- I have written to Mr X and the Council with my draft decision and given them an opportunity to comment.
What I found
- The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it. However, she may look at whether a council properly considered the findings and recommendations of the independent investigation.
- There are time limits within which the Council should complete its investigations. At stage 2 the investigation of the complaint should take no longer than 25 days or 65 days where the complaint is more complex. The timescales only apply from the date when the complaint and scope of investigation is agreed with the complainant where the complaint has been submitted orally.
- If a complaint goes to stage 3 then the panel’s consideration of the complaint should take no longer than 35 days and the Council has a further 15 days to respond to the findings.
Children Act 1989
- Section 47 of the 1989 Children Act says the Council must make enquiries when it has “reasonable cause to suspect that a child... is suffering, or is likely to suffer significant harm”. The Council has to decide what action, if any, it should take to safeguard the child’s welfare.
- On 1 December 2015 Mr X’s son, whom I shall call Y, told staff at his school that Mr X had hit him. The school reported this to the Council.
- A social worker from the Council visited the family on the same day with the police. The social worker asked Mr X to leave the family home whilst the Council worked with the family and investigated the allegation. Mr X denied the allegation and was upset at being asked to leave the family home.
- The Council observed contact between Mr X and the children on 23 December 2015. The Council was satisfied with the way contact went and the family moved back in together that day.
- Mr X was unhappy with the way he had been treated by the Council so he made a complaint. The Council responded to Mr X’s complaint at stage 1 of the complaints process on 1 March 2016. Mr X’s solicitor wrote to the Council with Mr X’s comments on the Council’s response on 18 March 2016. The Council replied on 1 March 2016 asking what outcome Mr X was seeking from his complaint.
- Mr X’s solicitor replied on 23 March 2016. Mr X’s solicitor said Mr X was “primarily seeking... and acknowledgement from the [Council] that matters were not (for whatever reason) handled as they should have been and an apology for that. Had this fairly small concession been forthcoming at the end of the stage 1 investigation, [Mr X] would have been happy to treat the matter as closed. Since it has been necessary to move forward to the next stage we would now also suggest that it would be appropriate for the [Council] to offer a contribution towards our client’s legal costs of the complaint and the additional stress and anxiety of pursuing the complaint to the next stage”.
- In early May 2016 the Council appointed an Investigating Officer (IO) and Independent Person (IP) to investigate Mr X’s stage 2 complaint. The IO and IP agreed to meet Mr X to discuss his complaint on 11 July 2016 but this was cancelled as the IP was unable to attend due to unforeseen circumstances.
- The Council wrote to Mr X on 18 July 2016 to rearrange the meeting. Mr X said he was only able to meet on Mondays and the IP was unable to meet on a Monday until August. Mr X agreed to meet on a Friday and a meeting was booked for 29 July 2016 to discuss the complaint.
- The IO and IP met to discuss the initial complaint summary and scope of the investigation on 5 September 2016. The Council says they were unable to meet earlier due to having annual leave at different times. The summary of complaint and scope of investigations was sent to Mr X’s solicitor that day.
- On 2 November 2016 Mr X’s solicitor said Mr X did not agree with the summary of complaint and scope of investigation and wanted to make some amendments. An amended summary of complaint was sent to Mr X’s solicitor on 18 November 2016.
- Mr X agreed with the summary of complaint and the scope of the investigation on 23 December 2016.
- The IO and IP conducted interviews with Mr X, social workers and the headteacher from Y’s school between January 2017 and 4 April 2017. There were some delays arranging to interview the social worker due to absence and the headteacher cancelled several meetings.
- The IO produced a first draft of a report on 25 May 2017 and this was sent to
Mr X on 7 June 2017 along with a report from the IP.
- The IO found no evidence of fault in the actions of the Council. The IP said the investigation had been carried out in a fair and balanced way but acknowledged there had been delays and that the investigation had taken longer than 65 days,
- The IO’s report said:
- The Council was entitled to carry out an investigation into what happened and the allegation made by Mr X’s son.
- There is no reason for the Council to apologise for the actions it took nor is there any reason for it to provide a financial remedy.
“The Team Manager advised the investigation that she felt that [Mr X] had experienced a great deal of shame as a result of this matter and that feeling was echoed by the Head of School. The Investigating Officer understood that too and can see that this may well have been a motivation for [Mr X] in pursuing this complaint and in the attitude of him and his friends towards some of the professionals involved, but especially the social worker. However, the investigation found no evidence of poor practice by any professionals involved in this matter, and can confirm that the practice provided by the social worker was seen to be of a high standard and based on good social work values and principles”.
- A stage 3 review panel hearing was held on 15 August 2017. The panel sent its findings to Mr X on 17 August 2017. The Panel found:
- No written information or leaflet was provided to Mr X explaining about section 47 enquiries and this “might have helped [Mr X and his family with] their understanding of events and the actions taken by [the Council]”.
- Mr X was not left with a copy of the “Contract of Expectations” and this should have been explored further by the IO and IP.
- There was delay in the stage 2 investigation of the complaint. The Council accepted this and apologised to Mr X for the delay.
- The Council should write to Mr X apologising for the failure to provide a copy of the “Contract of Expectation” on 1 December 2015 and for the “substantial delay” in completing the stage 2 investigation.
- A leaflet containing information about the legal process and written agreements should be left with parents who are involved in the child protection process. If one is already available the Council should ensure it is being shared with parents where appropriate.
- The Council should consider whether the delay in completing the stage 2 investigation is exceptional or whether there are systemic reasons which might require a review of current arrangements.
- The Council should consider making a financial payment to Mr X because of the delay in dealing with his stage 2 complaint.
The stage 3 panel said it would not recommend the Council contribute to Mr X’s legal costs as it was “not convinced that it is appropriate”.
- The Council wrote to Mr X on 21 August 2017. The Council apologised for failing to provide Mr X with relevant information in writing on 1 December 2015 and for delays in the stage 2 investigation. The Council offered to pay Mr X £150 to recognise the delay in completing the investigation. The Council also said it would comply with the panel’s recommendations regarding a review of its complaint handling and provision of information to parents subject to the child protection process.
- Mr X is unhappy that the stage 3 panel did not recommend the Council pay his legal fees for having his solicitor support him through the complaints process.
- The stage 3 investigation has dealt with Mr X’s concerns about the inadequacies of the stage 2 investigation. This has resulted in parts of the complaint being upheld and recommendations made. There are no further investigations that I could carry out that would change the findings of the stage 3 panel’s consideration of the complaint about what happened in December 2015.
- I have to consider whether the stage 3 panel’s recommendations and the Council’s response provided a suitable remedy to Mr X for the fault identified.
- It took 15 months for the IO an IP to conclude the stage 2 investigation. There was a period of three months where Mr X and his solicitor made amendments to the nature of the complaint and scope of investigation. The IP also had to cancel a meeting due to unforeseen circumstances and there were difficulties arranging interviews, particularly with the headteacher at Y’s school. However even taking those delays into account the investigation at stage 2 took significantly longer than allowed under the relevant legislation and statutory guidance.
- The Council has offered to pay Mr X £150 and says it took account of the Ombudsman’s guidance when deciding what was appropriate in acknowledging the delay. The delay would have caused Mr X a significant amount of frustration. The Council’s offer of £150 is in line with the Ombudsman’s guidance and reflects the impact the delays had on Mr X.
- The Ombudsman would not usually recommend that the Council reimburses someone’s legal fees incurred in pursuing a complaint. This is because the Ombudsman provides a free services and it should not be necessary to instruct a solicitor to pursue a complaint. I can see no reason why Mr X needed to instruct a solicitor to help him make his complaint although it was his choice to do so. There is no reason why the Council should reimburse these costs.
- The stage 3 panel did not deal with Mr X’s complaint about “racial stereotyping” within the penultimate paragraph of the IO’s report. Therefore, I have considered this as part of my investigation.
- The Council says it was not the role of the Panel to consider the “adequacy” of the report and Mr X did not raise this as part of his presentation. However Mr X’s solicitor did raise this as a specific point in his letter on 30 June 2017 so I would have expected the Panel to have addressed it, especially given the nature of the complaint.
- I could never prove the people identified in the paragraph were deliberately carrying out “racial stereotyping”. However, the paragraph is open to misinterpretation and I understand why Mr X and his solicitor would have taken offence at what was written.
- The paragraph adds nothing to the IO’s findings and there is no requirement within the relevant legislation or guidance for the IO or Council to investigate a complainant’s motives for bringing and pursuing a complaint. The paragraph should not have featured in the IO’s report.
- The Council has already agreed to take action recommended by the stage 3 panel. The Council should provide the Ombudsman with an update on how it has met those recommendations within two months of my final decision.
- Following my recommendations, the Council has agreed to write to Mr X and his solicitor to apologise for the wording of the penultimate paragraph of the IO’s report. The Council has also agreed to delete the paragraph from any copies of the report held on its files, record that it has done so and explain the reasons why. The Council should take this action within two months of my final decision.
- I have completed my investigation as I have found fault causing injustice. The action I have recommended is a suitable way to remedy this.
Investigator's decision on behalf of the Ombudsman