Rochdale Metropolitan Borough Council (18 000 071)

Category : Children's care services > Child protection

Decision : Upheld

Decision date : 09 May 2019

The Ombudsman's final decision:

Summary: Rochdale Metropolitan Borough Council is at fault in refusing to arrange a review panel at stage 3 of the children’s statutory complaints procedure when Mr F requested this. The Council will now arrange to consider the complaint at stage 3 of this procedure.

The complaint

  1. The complainant, whom I shall refer to as Mr F, complains about the Council’s investigation of his complaint about its children’s services team under the statutory children’s complaints procedure. Specifically he says:
      1. it was wrong to refuse to consider his complaint at stage 3 of the statutory process; and
      2. it has failed to properly consider all the evidence in relation to those parts of the complaint that were not upheld at stage 2 of the complaint investigation process.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
  3. 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)

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How I considered this complaint

  1. I discussed the complaint with Mr F and considered the written information he provided with his complaint.
  2. I gave the Council and Mr F the opportunity to comment on my draft decision. I took account of the responses I received before reaching a final decision on the complaint.
  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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What I found

  1. The Children Act 1989 requires councils which provide children’s services to set up a three stage complaints process. The form the procedure should take is set out in the Children Act 1989 Representations (England) Regulation 2006. 'Getting the Best from Complaints', the accompanying statutory guidance, was issued in 2006.
  2. The complaints process is a three stage procedure. Stage 1 is a local resolution stage. When a complaint is first brought to the council, it should try to resolve it and provide a response. Stage 2 is the investigation stage. If the complaint cannot be resolved at Stage 1, the complainant can request a full investigation leading to a report. The council must then provide a response to the report, either accepting or disputing its findings. Stage 3 is the review stage. If the complainant remains dissatisfied, s/he can ask for the complaint to be considered by a Review Panel which comprises three independent people. Again the council has to respond to the Review Panel’s findings.
  3. The statutory guidance confirms that as a general rule the review panel does not reinvestigate complaints or consider new complaints but states the review panel:
    • listens to all parties;
    • considers the adequacy of the Stage 2 investigation;
    • obtains any further information and advice that may help resolve the complaint to all parties' satisfaction;
    • focuses on achieving resolution for the complainant by addressing his clearly defined complaints and desired outcomes;
    • reaches findings on each of the complaints being reviewed;
    • makes recommendations that provide practical remedies and creative solutions to complex situations;
    • supports local solutions where the opportunity for resolution between the complainant and the local authority exists;
    • identifies any consequent injustice to the complainant where complaints are upheld, and recommends appropriate redress; and
    • recommends any service improvements for action by the authority.
  4. The complainant has a right to progress through all stages of the procedure if they so wish. Paragraph 3.1.5 of the statutory guidance confirms this stating “Where a complaint is accepted at Stage 1, the complainant is entitled to pursue their complaint further through this procedure except in the case of cross boundary issues. In all other instances, once a complaint has entered Stage 1, the local authority is obliged to ensure that the complaint proceeds to Stages 2 and 3 of this procedure, if that is the complainant’s wish”.
  5. Annex 3 of ‘Getting the Best from Complaints’ describes the circumstances in which the council can make an early referral to us. This can only happen if:
    • there has been a robust Stage 2 report upholding all of the complaint;
    • the majority of the complainant’s desired outcomes have been met; and
    • both parties agree to the referral.

What happened

  1. Mr F’s complaint was considered at stages 1 and 2 of the statutory procedure. The stage 2 adjudication upheld some of Mr F’s complaint but not all of it. Mr F’s complaint was divided into ten complaints but these were then sub-divided into 18 complaints. Of the 18, three were not upheld, one was partially upheld, three were considered “not resolvable”, and “no finding” was made on two others.
  2. Mr F considers that evidence that is available was not properly considered as part of the stage 2 investigation and wants a stage three panel to consider this and the parts of the complaint that were not upheld, which amounts to eight areas of complaint or nearly half of those considered.
  3. Mr F asked the Council to consider his complaint at stage 3 of the complaints procedure. The council’s letter of response to this request was to refuse it because officers did not consider the panel would reach “…any demonstrably different outcome”. The letter went to address three areas of the complaint that were not upheld and the reason the officer did not consider a different outcome was likely to be reached by a review panel. The officer’s reasons for believing that a panel would not reach a different conclusion seems to be the lack of available evidence. The officer told Mr F that if he wished to pursue his complaint further he could complaint to this office. Mr F is clear that he does not consider the evidence is not available or that a different conclusion should not be reached on the evidence that is available.
  4. Mr F still wants a review panel to consider his complaint at stage 3 of the complaints process.

Is the Council at fault and did this cause injustice?

  1. Mr F has complained to this office following the advice of the Council after it refused to arrange a review panel to consider his complaint at stage 3 of the statutory complaints process. The Council has not approached us to make an early referral but if it had I do not consider the grounds for this would have been reached. The statutory guidance is clear that Mr F has the right to have his complaint considered at all three stages of the complaints procedure having been accepted at stage 1 of the procedure. I accept that the panel will not reinvestigate the complaint as such but it can address the concerns Mr F has raised about the consideration of the available evidence and the conclusions drawn. It has the power to reach different decisions on those parts of the complaint that were not upheld. I do not consider the Council had grounds to consider the panel would reach the same conclusions the stage 2 investigation reached and in any case such conjecture is not a ground to refuse to arrange a stage 3 review panel.
  2. For these reasons, the refusal to arrange a review panel after Mr F requested this amounts to fault. This fault has caused Mr F injustice as he has been denied the opportunity to have his complaint thoroughly considered under the statutory procedure as he is entitled to.

Agreed action

  1. In order to remedy the identified fault the Council will make arrangements now for an independent review panel to consider the complaint under the stage 3 of the statutory complaints procedure.

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Final decision

  1. I have reached a final decision and issued a final statement on this complaint. The Council is at fault for refusing to arrange a review panel at stage three of the statutory children’s complaints procedure to consider Mr F’s complaint. This fault caused Mr F injustice and the Council will take the recommended action to remedy this.

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Investigator's decision on behalf of the Ombudsman

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