Decision : Upheld
Decision date : 28 Sep 2018
The Ombudsman's final decision:
Summary: Mr X complains of failings in social care affecting his grandchild and daughter. The Council will consider those matters that have not been before a court via the statutory children’s complaints procedure.
- Mr X complains on his own behalf and that of his daughter, Miss Y about failings by social care staff in dealing with his family. He says he is no longer able to see his grandchild, Z.
- The matters complained of concern inadequate notes of a meeting, the responses of a social worker to questions, the content of a report for a court, the lack of availability of a manager and failure to deal with a complaint, a failure to respond to a text message, a failure to read a mental health care plan, a failure to follow a court instruction and offensive comments to Miss Y by a social worker.
- Mr X also says the Council has failed to deal with his complaint properly.
- I have investigated how the Council dealt with the complaint. I give my reason for not investigating the substantive matters complained of at the end of this statement.
The Ombudsman’s role and powers
- 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)
- 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 cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
- 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)
- 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 read Mr X’s complaint and checked Miss Y’s consent. I read the complaints correspondence the Council supplied. I spoke to Mr X on the telephone. I considered the Council’s duty under the statutory children’s complaints procedure laid out in Getting the Best from Complaints, 2006. I shared a draft of this decision with both parties and invited their comments.
What I found
- Councils must deal with complaints by or on behalf of children about social care under a statutory procedure. Assuming the person complaining is entitled to do so, councils must send a written response. This response must tell the complainant of his or her right to request a second stage investigation if they are not satisfied with the response. This investigation is overseen by a person independent of the council. A council can only refuse to carry out a second stage investigation if all the points of complaint have already been upheld. Where matters have been before a court, the council cannot reinvestigate them.
What happened and was it fault?
- Mr X complained of failings by social workers. The Council responded to his complaint in writing. But it did not use the statutory procedure laid out for dealing with complaints by or on behalf of children. It did not offer him a second stage investigation when he was dissatisfied with its first response. Instead, it invited him for meetings. It told us this was because some of the matters were not suitable for the procedure because they were matters being considered by a court.
- The complaints concern Z. Miss Y is her mother and Mr X has Miss Y’s consent to make the complaint. By accepting his complaint, the Council accepted he was a fit person to complain in terms of the statutory procedure. Some of the points complained of appear to be court matters. But most of them are not. The Council should have offered him second stage investigation, excluding any court matters as necessary, and waiting for the court process to end if necessary. It did not do so. This was fault.
- It is not yet possible to say if this fault has caused Mr X any injustice beyond delaying his complaint.
- The Council will carry out a second stage investigation immediately using the statutory procedure laid out in Getting the Best from Complaints, 2006.
- I have upheld the complaint that the Council has failed to deal properly with Mr X’s complaint. I have reached no view on the substantive matters.
Parts of the complaint that I did not investigate
- I have not investigated the substantive matters. This is because the Council has not yet properly considered them. If Mr X remains dissatisfied when the Council has completed the complaints process, he can bring these matters back to the Ombudsman. He should do so within 12 months of the Council’s final response, unless there is a good reason that prevents him.
Investigator's decision on behalf of the Ombudsman