Decision : Upheld
Decision date : 26 Aug 2021
The Ombudsman's final decision:
Summary: Ms D complains the Council failed to plan for the end of a section 20 agreement under the Children Act 1989. This agreement meant the Council accommodated her son, B, with other family members as a Looked after Child. The Ombudsman finds the Council at fault for not carrying out an independent investigation of the complainant’s concerns under the statutory complaints procedure of the Children Act 1989. This caused Ms D injustice as she missed out on having her complaint fully investigated by the Council. To remedy this, the Council has agreed to carry out the independent investigation and make Ms D a payment.
- The complainant, who I shall refer to here as Ms D, complains the Council failed to plan for the end of an agreement under section 20 of Children Act 1989. Under this agreement, Ms D’s son, B, was a Looked after Child who the Council had accommodated with other family members. Ms D complains, in the year before the agreement was due to end, the Council failed to provide financial assistance to help with a family holiday, and to ensure regular home visits took place.
- Ms D complains the Council has failed to act on her request for her complaint to be considered under stage two of the Children’s Statutory Complaints Process (established by the Children Act 1989).
- Ms D says the Council’s failure to respond to her complaint has resulted in a loss of opportunity to have her complaint properly considered. She says this covers a period from June 2019 to March 2021, almost two years.
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)
How I considered this complaint
- I considered the information and documents provided by Ms D and the Council. I spoke to Ms D about her complaint.
- Ms D and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
- 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.
What I found
What should have happened
Looked after Children
- A Looked after Child is any child who is subject to a care order or accommodated away from their family by a council. The accommodation can be voluntary or by care order. The child becomes looked after when the council has accommodated them for a continuous period of longer than 24 hours. (Children Act 1989, section 20)
The Children’s Statutory Complaints Process
- The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services.
- Stage one of this procedure is local resolution where staff at the point of service delivery try to resolve the complaint. Stage one complaint responses should be completed in 10 working days, with a further 10 days for more complex complaints.
- At stage two, the Council appoints an Investigating Officer (IO) and an Independent Person (IP). The IP is responsible for overseeing the investigation. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review. If a council has investigated something under this procedure, we would not normally re-investigate it unless we considered that investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
- The IO should have access to all relevant records and staff. These should be released within the bounds of normal confidentiality and with regard to relevant legislation in the Freedom of Information Act 2000 and Data Protection Act 2018.
- The Adjudicating Officer (AO) should be a senior council officer and should write to the complainant at the end of the stage two complaint investigation with details of the adjudication which confirms:
- the council’s response to the IO and IP’s reports;
- its decision on each point of complaint; and,
- any action to be taken (with timescales for implementation).
- Stage two complaints should be responded to within 25 working days with a maximum extension to 65 working days. Councils should keep complainants updated on progress if there is any delay in sending the stage two response. (Guidance on Getting the Best from Complaints – Social Care Complaints and Representations for Children, Young People and Others, 2006 (the Guidance))
- The Ombudsman takes the view that complainants should exhaust the statutory complaints procedure before he will consider a complaint. Therefore, councils should ensure that complainants are given the opportunity to have their complaints considered at all three stages of the statutory complaints’ procedure.
- Annex 3 of the Guidance describes the circumstances in which a council can make an early referral to the Ombudsman. This can only happen if there has been a robust stage 2 report, the complaints have all been upheld and the majority of the complainant’s desired outcomes have been met.
- The guidance also says that someone can complain to the Ombudsman at any time. The Ombudsman might exercise discretion to investigate in certain but rare circumstances.
- In June 2019, Ms D complained to the Council about a section 20 agreement that was due to end in July. Under this agreement, the Council had accommodated her son, B, with other family members as a Looked after Child.
- Ms D complained the Council had failed to plan for the ending of the section 20 agreement. She also complained, in the year before the agreement was due to end, the Council failed to provide financial assistance to help with a family holiday, and to ensure regular home visits took place.
- In September, the Council sent Ms D its stage one complaint response.
- A few weeks later, Ms D asked the Council to consider her complaint under stage two of the statutory complaints procedure as she was not happy with its response.
- The Council replied to Ms D asking her to provide the specific parts of her complaint she wished to be investigated.
- In December, Ms D chased the Council for a stage two response.
- The Council replied to say it had not yet received a stage two request from her as it needed to know what aspects of the stage one response she was unhappy with.
- In February and November 2020, Ms D complained to the Ombudsman.
- On both occasions, the Ombudsman closed Ms D’s complaint because, as required by law, the Council had not yet had the opportunity to investigate and reply to Ms D’s complaint under all stages of the statutory complaints procedure.
- In January 2021, Ms D complained to the Ombudsman again that the Council had not progressed her request for her complaint to be considered under stage two. She said the Council told her that she would need to start the complaint process again as it could only consider complaints raised within the last 12 months.
- In February, Ms D emailed the Council to follow up on her request for her complaint to be considered under stage two.
Analysis – was there fault by the Council causing injustice?
- Ms D made her stage one complaint in June 2019. The Council has provided evidence that shows it organised a meeting with Ms D in July 2019 with the aim of resolving matters to her satisfaction. It provided Ms D with a resolution response a week later apologising for the breakdown in communication and providing her with details of who to contact if she remained unhappy. When Ms D wrote to the Council in August to say she remained unhappy with the Council’s response, the Council accepted this complaint under stage one of the complaints process. I find the Council was acting in good faith here, and the meeting and response was dealt with expediently.
- The Council sent her its response 20 working days later in September. In line with paragraph 10 above, the Council should have sent her its stage one complaint response within 10 working days, with a further 10 days for more complex complaints. The Council’s stage one complaint response was, therefore, within the allowable statutory timescales for more complex complaints. I do not find the Council at fault here.
- Having considered Ms D’s complaint, I consider there is no reason for the Council not to have put her complaint about the ending of a section 20 agreement through all stages of the Children Act statutory complaints procedures. These are complaints about the Council’s provision of accommodation for a Looked after Child. I consider this complaint eligible for consideration under the Children Act complaints process.
- The complaint also does not meet the criteria for an early referral to the Ombudsman (see paragraph 17 above).
- I, therefore, find the Council at fault for not enabling Ms D’s complaint to be considered under the statutory complaints process. It should have begun this process at the point Ms D requested a stage two response at the end of September 2019. In line with paragraph 15 above, the Council should have sent its stage two complaint response within 25 working days (with a maximum extension to 65 working days). Ms D was still waiting for a stage two response when the Ombudsman accepted to investigate her complaint in March 2021; one year and five months later.
- This delay and refusal to accept her stage two request caused Ms D injustice. The complaint process has been prolonged and her complaints have not been fully considered. She has gone to time and trouble trying to get the Council to consider her complaint.
- apologise to Ms D for the delays in considering her complaint under stage two of the statutory complaints procedure;
- consider Ms D’s complaints under the Children Act procedure, starting with a Stage Two investigation; and,
- make Ms D a payment of £500 for the significant delays in progressing her complaint to stage two of the statutory complaints procedure. When recommending this payment I have considered the Ombudsman’s published guidance on remedies. This recommendation is above the Ombudsman’s usual range of £100 to £300 for such unavoidable uncertainty, distress and loss of opportunity. This is because of the significant, prolonged delay of one year and five months that Ms D has experienced (covering the period from end of September 2019 to March 2021).
- I have completed my investigation. I have decided to uphold Ms D’s complaint because there was fault by the Council causing her injustice. The Council has agreed to the above recommended actions, which are suitable ways for the Council to remedy this.
Investigator's decision on behalf of the Ombudsman