Decision : Upheld
Decision date : 02 Sep 2019
The Ombudsman's final decision:
Summary: Mrs X complained about the way the Council dealt with a child protection investigation. The Ombudsman finds that the Council failed to investigate Mrs X’s complaint under stage two of the Children’s Act 1989. This caused Mrs X some uncertainty about whether the outcome of her complaint may have been different. The Council has agreed to carry out a stage two investigation and make an apology and payment to Mrs X to remedy the injustice caused.
- Mrs X complains about the way the Council dealt with a child protection investigation. She also complains about the conduct and attitude of social care staff throughout the process.
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 spoke to Mrs X about her complaint and considered information from Mrs X and the Council.
- I gave Mrs X and the Council a copy of my draft decision and invited their comments.
What I found
- The Children Act 1989 and Representation Procedure (England) Regulations 2009 provides that those in receipt of certain services can make representations or complaints to the Council. The Council has to investigate the complaint subject to certain restrictions.
- There are three stages to the statutory complaint’s procedure. The first is a response from the service area within ten working days. The second stage is an investigation by a person from outside the service area or an independent person. This has a time limit of 25 working days, or 65 working days in complex cases by agreement with the complaints. Stage two starts when the complainant asks for it in writing, or if verbally, when he or she agrees a statement of complaint with the investigator. The third stage is consideration by an independent review panel.
- Paragraph 2.2.1 and 2.2.2 of the statutory procedures set out what may be complained about. It includes:
- an unwelcomed or disputed decsion;
- concern about the quality or appropriateness of a service;
- delay in decision making or provision of services;
- delivery or non- delivery of services including complaints procedures;
- attitude or behaviour of staff;
- application of eligibility and assessment criteria;
- assessment, care management and review;
- matters that do not relate to court.
- The Council clarified that complaints about the ‘functioning of child protection conferences’ are considered under the statutory complaint’s procedure. This includes complaint about:
- the process of the conference;
- the outcome, in terms of the fact of and/or category of primary concerns the child became the subject of a child protection plan;
- a decsion for the child to become, to continue or not to become, the subject of a child protection plan.
- The Council’s safeguarding procedure states that the complaint process itself cannot change the decision to have a child protection plan however, may decide that a conference is reconvened under a different conference chair, a review conference is bought forward and/or it confirms that the decsion made by the conference stands.
- Mrs X complained to the Council in February 2019 about the way the Council dealt with a child protection investigation. She also complained about the conduct and attitude of social care staff throughout the process.
- The matters Mrs X complained about were considered by the Council under the children’s statutory complaints procedure. The Council responded to the complaint at stage one, in March 2019 and met with Mrs X to discuss her concerns further. Mrs X said the Council had failed to fully investigate her complaint, showed a disregard for policy and its conclusions were not evidence based. On 3 April 2019, Mrs X asked for her complaint to be escalated to stage three. On 12 April 2019, the Council said it had not yet investigated her complaint at stage two but refused to do so on the basis that it could not achieve the outcomes that Mrs X wanted.
- A Council can only vary from the statutory children’s complaints procedure in exceptional circumstances. Mrs X said that, the Council’s stage one response had not fully addressed her concerns. She said that there had been a disregard for policy and that the conclusions reached by the Council were not evidence based. Although the Council decided that it could not achieve the outcomes Mrs X wanted, it failed to consider whether the concerns that she continued to raise should be investigated at stage two. Given that the second stage investigation of the complaint procedure is an independent investigation it would be for the investigator to determine whether the Council’s previous response had addressed the issues raised and if applicable consider whether recommendations were required.
- I have found the Council to be at fault in its decision not to investigate Mrs X’s complaint at stage two, when she requested this on 12 April 2019. As a result, it failed to ensure that the issues of complaint were properly considered. This is fault. Because of this there has also been a considerable delay in investigating and responding to Mrs X’s complaint. This is fault. The faults identified have caused Mrs X uncertainty, and avoidable stress and anxiety.
- The Council has agreed to my recommendations and within four weeks of my final decsion will:
- Arrange a second stage investigation immediately into Mrs X’s complaint;
- Apologise to Mrs X for failing to respond to her complaint under the statutory complaints procedure and therefore failing to ensure her complaint was properly considered and for the uncertainty this has caused her;
- Pay Mrs X £150 for the avoidable delay, stress and anxiety caused by the missed opportunity to seek a stage 2 investigation into her complaint;
- Should Mrs X remain dissatisfied after the Council has dealt with her complaint, she can return to the Ombudsman for consideration of the substantive issues. She should do so within 12 months of the Council’s final response unless there is a good reason that prevents her from doing so.
- The Ombudsman finds that the Council failed to investigate Mrs X’s complaint under stage two of the Children’s Act 1989. This caused Mrs X some uncertainty about whether the outcome of her complaint may have been different. The Council has agreed to my recommendations. I have completed my investigation on this basis.
Parts of the complaint that I did not investigate
- I have not investigated Mrs X’s complaint about the way the Council dealt with the child protection investigation. Should Mrs X remain dissatisfied after the Council has dealt with her complaint, she can return to the Ombudsman for consideration of the substantive issues.
Investigator's decision on behalf of the Ombudsman