Summary: The Council failed to consider Mr X’s complaint under the statutory children’s complaints procedure. The Council should arrange to do so without delay and pay Mr X £500 to recognise the unnecessary time and trouble and distress this caused him.

The complaint

1. Mr X complaints the Council failed to protect him when he was in his mother’s care. Mr X says the Council has failed to respond to his complaints about this matter.

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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)

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How I considered this complaint

4. I have spoken to Mr X about his complaint. I have also considered the Council’s responses to his complaints.
5. I have considered the Ombudsman’s Guidance on Remedies which is available on our website.
6. I have written to Mr X and the Council with my draft decision and given them an opportunity to comment.

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What I found

Children’s statutory complaints procedure

7. 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 Investigating Officer and an Independent Person (who is responsible for overseeing the investigation).
8. A stage 2 investigation should take no longer than 35 working days unless the complaint is complicated in which case it should take no longer than 65 working days.
9. If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. (Children Act 1989 Representations Procedure (England) Regulations 2006 & “Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others”)
10. 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 and stage 3 panel.

What happened

11. In August 2017 Mr X made a complaint about how the Council had acted when he was a child in the care of his mother. Mr X says the Council did not do enough to protect him.
12. The Council responded to Mr X’s complaint at stage 1 of the complaint process on 29 September 2017. Mr X was unhappy with the outcome of his complaint and on 31 October 2017 he asked the Council to consider his complaint at stage 2.
13. It is unclear what happened after this point. The Council had a meeting with Mr X on 28 November 2017 to discuss his complaint. The Council said it would write to him further by 15 December 2017 and after this time he could consider if he still wanted to progress his complaint to stage 2.
14. The Council wrote to Mr X on 12 December 2017 to say it may take longer than expected to provide an update and so it would not be able to respond by 15 December as it previously stated.
15. The Council wrote to Mr X on 12 February 2018 with more details about actions it had taken when he was a child. The Council said if Mr X was unhappy he could raise a further complaint.
16. The Council says it did not hear from Mr X again until August 2019 when he sent it an e-mail asking it to continue looking at his complaint. The Council responded to Mr X and said it had treated his e-mail as a request for a “second opinion”. The Council said its previous response had explained the actions the Council had taken when Mr X was a child. The Council said “further investigation by the Council would not alter the conclusion reached [in the Council’s] previous correspondence and meeting with you”. The Council said Mr X should contact the Ombudsman if he remained unhappy.

My findings

17. The Council is at fault for failing to start a stage 2 investigation when Mr X requested on in October 2017.
18. When a complainant or their representative requests a stage 2 investigation then the Council must consider the complaint. There is no requirement for the complainant to say what outcome they are seeking. The Council’s view on the possible outcome of a stage 2 investigation is also irrelevant.
19. The law is clear that where a stage 2 investigation is requested the Council must make arrangements for this to happen. (Children Act 1989 Representations Procedure (England) Regulations 2006, Regulation 15(2) and 17(1))
20. Mr X has been put to unnecessary time and trouble having to engage with the Council’s non-statutory processes after he requested a stage 2 investigation. It has now been two years since Mr X made his initial complaint. Whilst I understand Mr X was not in contact with the Council between February 2018 and August 2019 this would not have happened if the Council had accepted Mr X’s request for a stage 2 investigation when he requested it.
21. Mr X is vulnerable and may not have fully understood his right to progress his complaint. He should not be expected to understand those rights and the Council should have provided him with the service he was entitled to. Therefore, Mr X has not contributed to the delay in his complaint being considered.

Agreed action

22. The Council has agreed to take the following action to remedy the injustice caused by the fault I have identified:
• Begin an investigation into Mr X’s complaint at stage 2 of the statutory complaint’s procedure. I expect the Council to take steps to ensure the investigation is completed within the statutory timescales set out in the relevant legislation. Mr X made his request for a stage 2 in writing on the 31 October 2017. This would have been the start date for the stage 2 investigation under regulation 17(4)(b) of the Children Act 1989 Representations Procedure (England) Regulations 2006. Therefore, the start date of the investigation should be taken from the date of my final decision.
• The Council should also pay Mr X £500 to acknowledge the unnecessary time and trouble and distress he was caused as a result of having to engage with the Council’s non-statutory processes despite having made a request for a stage 2 investigation. The Council should make this payment within 8 weeks of my final decision.
23. Mr X may make a further complaint to the Ombudsman about this matter if he is unhappy with the Council’s responses at stage 2 and stage 3 of the statutory complaint’s procedure.
24. The Council should also take the following action to improve its services as a result of lessons that can be learned from this complaint:
• Remind all relevant staff of the provisions of the Children Act 1989 Representations Procedure (England) Regulations 2006, particularly the right of complainants to have their complaints considered at all stages of the complaints process as well as statutory timescales involved.
• Arrange for all staff who deal with children’s services complaints to undertake complaint handling training. The Council has confirmed that staff have undergone training since Mr X first complained. Therefore the Council need take not further action at this time.
25. The Council should take this action within three months of my final decision and provide the Ombudsman with evidence it has done so.

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Final decision

26. I have completed my investigation into this complaint as I have found fault causing an injustice. The action I have recommended is a suitable way to remedy this.

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Investigator's decision on behalf of the Ombudsman