Summary: The Council delayed completed all the actions it agreed to, after an investigation under the statutory complaints process found there to be considerable fault in how the Council dealt with matters relating to the complainant and her family.

The complaint

1. The complainant, whom I shall refer to as Ms C, complains about the outcome of her complaint about children’s care services. Ms C says that an investigation upheld most of her complaints and made several recommendations. However, the Council has not implemented these recommendations and therefore she has not received a suitable remedy for the injustice the Council has caused her.

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The Ombudsman’s role and powers

2. 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)
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)
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered the information and documents provided by Ms C and the Council. I spoke to Ms C about her complaint.
6. I have considered the relevant statutory guidance, set out below.
7. I have also sent a draft version of this document to Ms C, and invited her comments.

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What I found

Children’s social care complaints

Stages of the complaints process

8. The government published statutory guidance, ‘Getting the Best from Complaints’, which sets out a three-stage procedure that councils follow when considering certain complaints about children’s social care services.
9. At stage one, the council considers the complaint and should try and resolve the complaint as quickly as possible. The council should also try and agree a way forward with the complainant.
10. At stage two, the council appoints an independent Investigating Officer to investigate the complaint, and an Independent Person who is responsible for overseeing the investigation. Both will complete a report.
11. The guidance says consideration of the complaint at stage two should be fair, thorough and transparent with clear and logical outcomes. It says the Investigating Officer’s report should detail findings, conclusions and outcomes against each point of the complaint. Also, the report should give recommendations on how to remedy any injustice to the complainant, as appropriate.
12. After this, the council will appoint a senior manager to adjudicate on the findings. The purpose of this is for the council to consider the reports and identify its response, its decision on each point of the complaint, and any action to be taken with timescales for implementation.
13. The complainant can then ask the council to convene an independent review panel. This forms the third stage of the complaints procedure. The review panel will consider the adequacy of the independent stage two investigation.
14. After a stage two adjudication, a complaint can be further considered by early referral to the Ombudsman in a limited number of cases, instead of a stage three review panel. Certain criteria need to be met in order to do this.

Timescales for the complaints process

15. The guidance sets out timescales within which certain actions should be completed. This also says that councils should consider mediation and conflict resolution at all stages.
16. The guidance says that once a complaint is made, the council should make an initial attempt to resolve matters within ten working days, unless an extension is agreed. The guidance says the maximum time a stage one should take is 20 working days. After this deadline, a complainant can ask for the complaint to be dealt with at stage two.
17. The guidance says that a council has 25 working days to produce the Investigating Officer’s report and its own adjudication on the Investigating Officer’s findings.
18. The guidance says this can be extended to 65 working days because in certain circumstances 25 working days may not be sufficient or practical.

Background

19. Ms C has four children with additional needs who I shall refer to as A, B & C. She has another child who has no additional needs who I shall refer to as D.

Complaint

20. In November 2018 Ms C complained about the Council’s children’s care services involvement in her family. Her complaint was responded to, at stage one of the statutory children’s complaints process.
21. Dissatisfied with the Council’s response, Ms C asked the Council to progress her complaint to stage two of the complaints process.
22. The Council appointed an independent Investigating Officer and Independent Person who visited Ms C in June 2019 to gain an understanding of her complaints and expected outcomes. A statement of complaint was subsequently agreed and signed by Ms C.
23. The statement of complaint comprised of 13 different issues. These can be summarised as:
1. The Council delayed investigating her complaint.
2. The Council failed to complete a thorough and accurate reassessment of A & B’s needs.
3. A carers assessment for D was not completed.
4. The Council failed to produce an accurate reassessment of B’s needs, instead relying on an inflexible direct payment package.
5. The Council failed to produce an accurate reassessment of A’s needs, instead stating his needs arise from B’s diagnosis.
6. The Council ended A & B’s direct payments without notice after a reassessment had come into effect at the end of September 2018.
7. Ms C’s complaint about the A & B’s direct payments being stopped should have been investigated efficiently under the corporate complaints process.
8. The Council has failed to commission services in accordance with A & B’s needs.
9. The Council disregarded her concerns about the sharing of information regarding A & B’s direct payments.
10. When Ms C has raised concerns, she has not been taken seriously and blamed for causing problems.
11. Ms C’s views have not been considered and her role as a carer has not been valued.
12. The Council failed to release direct payment funds on time to allow Ms C to pay workers providing support to her family.
13. Staff in the Disabled Children’s Team have not communicated with her appropriately.
24. In September 2019, the Investigating Officer completed their investigation report, upholding all of Ms C’s complaints, apart from point ‘e’ above. The Investigating Officer made several recommendations. These can be summarised as:
• Apology - Ms C should receive an apology for the upheld complaints.
• Information – Ms C should be provided with certain documents previously withheld and information should be recorded accurately.
• Staff training – Staff should be reminded of their roles and responsibilities in regard to some of the faults identified.
• Ongoing work with the family – An independent Social Worker should be appointed to work with Ms C and her family, and the Council should consider an approach that is different to the previous confrontational approach.
• Service improvements – Further work should be carried out on how to commission or provide services for young people with challenging needs. A policy on the audio recording of meetings should be considered.
25. The Assistant Director of Education and Early Help wrote to Ms C to inform her of the outcome of the investigation. She said that the Council accepted the findings and apologised for the difficult relationship.
26. The Assistant Director offered to meet with Ms C along with the Head of Service, to work through how to proceed in the future and for her to share her thoughts about what actions needed to be taken.
27. The Council assigned an Independent Social Worker to Ms C’s case and Ms C subsequently attended meetings with the Council, chaired at Assistant Director level, with a view to formulating an agreed action plan to address the outcome and recommendations from the stage two investigation.
28. The first meeting was held in October. Minutes were provided to Ms C after the meeting, and she subsequently provided amendments to the minutes.
29. A further six meetings were held with minutes taken and the final two meetings were recorded. An action plan was drawn up, designed to meet the recommendations detailed in the stage 2 report.
30. Despite the efforts made by both the Council and Ms C, they could not reach an agreement on the action plan, and in October 2020, the Assistant Director wrote to Ms C with the Council’s final response.
31. The Council considered that most of the actions had been completed. However, accepted that some were outstanding, so explained how it would proceed with those.

Actions

32. The action plan listed each of Ms C’s complaints, the actions being taken by the Council and the progress. The actions are summarised as follows:
• Apology for the faults identified.
• Offer of a payment to remedy the injustice caused by the Councill’s faults.
• Carry out a review of the children’s needs.
• Carry out a carers assessment of Ms C and D.
• Implement staff training.
• Ensure accuracy of information.
33. In October 2020, after agreement could not be reached on the action plan, the Council carried out a review of the plan and issued Ms C with a final response.

Analysis

34. The Ombudsman does not normally re-investigate matters that have been investigated through the statutory complaints procedure unless there is evidence of flaws in the investigation process which are likely to have affected the outcome.
35. In this case I consider that overall, the investigation carried out at stage 2 of the process was comprehensive. Therefore, I decided not to reinvestigate the complaints.
36. In this investigation, I have considered the remedy offered by the Council and whether the Council has implemented the recommendations made during the complaints process.

Apology

37. The Council agreed to issue an apology to Ms C for the faults identified in the stage 2 report. In May 2020, the Assistant Director of Children’s Services at the Council wrote to Ms C, in which she formally apologised on behalf of the Council about the faults identified in the stage 2 report.
38. Ms C does not consider this apology to be sufficient and wants the Council to consider a personal apology from staff members involved in the case. Ms C also wants an apology made to her children.
39. However, the Ombudsman would not normally seek an apology from a specific officer. This is because responsibility for making the apology rests corporately with the Council. I also consider it appropriate that the Council addressed its apology to Ms C, rather than her children. This is because she was representing her family throughout the complaint. Therefore, I consider that the Council has offered a suitable apology.

Financial remedy

40. The Council initially offered Ms C £150 for the time and trouble she went to pursuing her complaint. It increased this offer £300, to reflect the delays in its complaints process.
41. Having considered this point, I conclude that the payment offered for time and trouble is in line with the Ombudsman’s remedies guidance and I therefore conclude that this is a suitable remedy.
42. The Council also offered Ms C £150 for the distress caused by the faults identified in the stage 2 report. However, it subsequently increased this offer to a total of £4500 for the significant distress caused to her and to her family.
43. Ms C also requested that the Council consider a financial remedy for the loss of service. The Council said it was minded in principle to award a further payment, but asked Ms C to provide a figure she deemed suitable.
44. Ms C provided details of services that B had missed out on due to the Councils fault, she subsequently met with the Council and estimated a figure of approximately £10,000 to remedy the lost service up to February 2020.
45. The Council wrote to Ms C and made an offer of £7000 as a full and final settlement for lost services up to February 2020. The Council said that if Ms C feels there have been gaps in service past this date, she would need to submit a further complaint.
46. Having spoken to Ms C, it is clear that the faults identified in the stage 2 report have caused her and her family significant distress in the form of uncertainty as to whether things could have been different if it were not for the errors, in the form of outrage that Ms C has not been treated fairly and in the form of stress in the form of inconvenience and frustration.
47. It is difficult to remedy an injustice such as distress, so the Ombudsman often recommends a token about of between £100 to £300, with larger amounts up to £1000 where the distress was severe or prolonged.
48. Ms C valued the loss of service caused by the Council’s fault at approximately £10,000. The Council considered this request and offered a payment of £7000.
49. Having considered the two payments for distress and loss of service, I consider that the payment to remedy the distress is far more than any payment the Ombudsman would have likely offered.
50. Although the payment to remedy the loss of service is lower than Ms C requested, I consider the two payments combined appropriately remedy the injustice caused by the loss of service and distress.

Review of children’s needs

51. In order to assess A & B’s needs, the Council said it would carry out Child in Need (CiN) reviews for both children and would issue CIN plans.
52. The Council said it would also issue a new Direct Payment (DP) agreement upon issuing the plans.
53. A CiN review for both children was held in January 2020, and draft plans were sent to Ms C who made comments, amended draft plans were sent in May and further comments were made by Ms C.
54. The Council arranged a further CiN review in November 2020 and further amendments were made to the plans.
55. Whilst the Council considers the plans to be working document, it says that it has been unable to reach an agreement with Ms C about the contents and therefore whilst the plans are being enacted upon, they remain at draft stage.
56. The Council say that it considers that the needs of the children are being met in accordance with the plans, something the Independent Social Worker agrees with.
57. The Council says a new DP agreement had not been issued, because the existing gives Ms C the opportunity to cancel the agreement in writing within four weeks, which is something new arrangements do not include.
58. However, the Council has since told the Ombudsman that arrangements do now include the option for the arrangement to be cancelled within four weeks and therefore it will be issuing a new arrangement to Ms C.
59. Ms C disagrees with the Council’s approach to the assessment of A & B’s needs Th. However, I do not find the Council to be at fault for the approach it has taken. I note that the Independent Officer did not recommend that new single assessments should be carried out, as they did not consider that this would resolve the matters raised in Ms C’s complaint.

Review of carers assessments

60. The stage two investigation found that carers assessments had not been carried out for Ms C or D.
61. The Council agreed that it would carry out a standalone Carers Assessment for Ms C. However, this has still not been completed. The Council said this is because their priority has been the case management of Ms C Children.
62. However, the stage two report was concluded more than 17 months ago. I consider that the Council have had sufficient time to complete Ms C’s assessment, but it has not. This is fault.
63. It has since been agreed that the Adult Social Care Services will carry out a Carers Assessment for Ms C, and this assessment is now under way.
64. The Council considered whether that it was not necessary for D to be subject to a carers assessment. The Council said this is because D is a paid carer under Direct Payment arrangements.
65. I am satisfied that the Council have considered D’s suitability for a carers assessment and fully explained the reasons why it does not consider an assessment is necessary at this time. I find no fault with how it considered this, so I am unable to question the merits of its decision.

Service improvements

66. The action plan included the implementation of training for staff in the Disabled Children Team, which should be implemented by August 2020.
67. The Council say it created a training package for the team and that the package was delivered to all staff by August 2020.
68. The Council has provided the Ombudsman with a copy of the training material, which explores relevant legislation, the teams roles and responsibilities regarding care planning and ways to ensure young peoples voices are heard.
69. The Council made changes to its direct payment policy, meaning that users can give one months’ notice. Direct Payment agreements have also been amended to reflect this.
70. The Council also briefed staff on the importance to involve parents and carers through the assessment process.
71. The stage 2 investigation also concluded that the Council should implement a clear policy of how meetings should be recorded.
72. Having considered this element of Ms C’s complaint I do consider that the Council has implemented suitable service improvements in response to the findings of the stage 2 investigation.
73. However, although meetings between Ms C and the Council have been recorded since August 2020, no policy on this matter has yet been produced, despite the Council acknowledging that a policy is required. This is fault.

Inaccurate information

74. Ms C feels information held by the Council about her and her family is inaccurate and wants the information removed or rectified. Ms C also says the Council has failed to property respond to SARs.
75. The Council has agreed that any information that Ms C feels is inaccurate can be flagged as such.
76. Ms C has asked the Information Commissioner to investigate the Council’s handling of her information.
77. We should not investigate this element of Ms C’s complaint. This is because she has already complained to the Information Commissioner about these matters, who is better placed to investigate these matters.

Conclusion

78. I consider that overall, the investigation carried out at Stage 2 of the process was comprehensive. Therefore, I decided not to reinvestigate the complaints.
79. I have therefore considered the action plan the Council put in place to remedy the faults identified in the stage 2 investigation.
80. I conclude that the Council has largely remedied these faults. However, there are elements of the action plan that have still not been completed, despite the stage 2 investigation being finalised some 17 months ago.
81. The Council has not completed a carers assessment for Ms C, although has now confirmed that an assessment is under way. The Council should complete this within two months of the date of my final decision.
82. The Council has also failed to introduce a policy for recording meetings, despite agreeing with the stage 2 investigation that such as policy was necessary. The Council should complete this within six months of the date of my final decision.
83. The Council has offered a payment to remedy the loss of service up to February 2020, and that if she feels there has been a further loss of service past this date, she can submit a new complaint about this. If Ms C does choose to complain about this and remains dissatisfied with the Council’s response, she can ask the Ombudsman to investigate this.
84. Finally, Ms C has said she feels the relationship between her, and the Council has broken down and feels the Council should appoint a mediator. However, I have considered Ms C’s point but do not feel that I can make such a recommendation. This is because the Council has appointed an independent social worker who remains in place.

Agreed action

85. The Council has agreed that within 2 months of the date of my final decision, it will complete its carers assessment of Ms C.
86. Within 6 months of the date of my final decision, the Council has agreed it will complete a policy on the recording of meetings and provide the Ombudsman with a copy.

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Final decision

87. I have concluded my investigation with a finding of fault.

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Parts of the complaint that I did not investigate

88. I did not investigate Ms C’s complaint that the Council holds inaccurate information and has failed to properly respond to SARs. This is because she has asked the Information Commissioner to investigate these matters and I consider the Information Commissioner better placed to investigate such matters.
89. The Council has said it now plans to arrange for the independent social worker to draft a summary of disputed issues and add this to the file.

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Investigator's decision on behalf of the Ombudsman