Summary: The complainant said that the Council had failed to start a Stage 2 investigation, under the statutory Children Act complaints procedure. This has caused avoidable frustration. We find fault causing injustice by the Council. The Council has now agreed to undertake a Stage 2 investigation and to apologise to the complainant. Therefore, we have completed our investigation and are closing the complaint.

The complaint

1. The complainant, who I refer to as Mr X, complained that the Council agreed to investigate his complaints about the care of his daughter (C) under the Children Act 1989 statutory complaint procedure. But the Council has failed to progress this complaint investigation.
2. This has caused Mr X avoidable distress and frustration and it means that his concerns about his daughter’s care are not being independently investigated and, therefore, this also means a potential injustice to C.

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What I have investigated

3. I am investigating the way the Council has managed Mr X’s complaints. I am not investigating the substantive matters. Once Mr X has completed the statutory complaint procedure, and, if Mr X is dissatisfied with the final decision, he can resubmit his complaint to the Ombudsman.
4. Mr X has also made a complaint about his local health trust. He is not satisfied with the investigation carried out by the trust. So, Mr X has made a complaint to the Health Service Ombudsman.
5. In the event of Mr X resubmitting his complaint to the Ombudsman about the Council’s actions, we can then consider whether there should be a joint investigation, with the Health Service Ombudsman, covering both the Council and the health trust’s actions.

The Ombudsman’s role and powers

6. 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)
7. 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

8. I have considered the Council’s responses to Mr X’s complaints and I have spoken to Mr X on the telephone. I have also asked the Council for an update, which it has provided.
9. I issued a draft decision statement to the Council and to the complainant. I have taken into account their additional comments when reaching my final decision.
10. Under the information sharing agreement between the Local Government Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share our final decision with Ofsted.

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What I found

Statutory complaints procedures

11. The Children Act 1989 and the Representations Procedure (England) Regulations 2006 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.
12. There are three stages to the statutory social services complaint procedure. The first stage allows an informal resolution of the complaint and should be completed within 10 working days.
13. If an informal resolution is not possible, the complainant is entitled to a detailed independent investigation of the complaint. If the complainant requests this, the council should appoint an independent investigator within 20 working days. The council may also appoint an independent person to oversee the investigation.
14. A stage 2 investigation should be completed (including the council’s adjudication response) within 25 working days or 65 working days if there are good reasons.
15. At the final stage, an independent Complaints Review Panel can consider the complaint and make recommendations to the council.
16. Once the complainant has completed the statutory complaints procedure, he/she can refer the complaint to the Local Government Ombudsman, if they remain dissatisfied.
17. The Getting the Best from Complaints Guidance 2006 provides detailed guidance on how councils should conduct investigations into complaints.
18. The Ombudsman takes the view that complainants should exhaust the statutory complaints procedure before he will consider a complaint. He is normally the final point in the statutory complaints process. Therefore, councils should ensure that complainants are given the opportunity to have their complaints considered at all three stages.
19. The regulations concerning the statutory complaints procedure were relaxed during the period of the Covid 19 lockdown. But this was only in relation to the timescale for setting up a Complaints Review Panel.

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Key events

20. C is an adopted child who has significant difficulties. As a teenager, C’s behaviours were very risky, and she became a serious self-harmer. C was placed in the care of the Council and has also been sectioned under the Mental Health Act and placed in adolescent psychiatric inpatient units.
21. C is now 18 and is under the care of the Adult Mental Health Team.
22. Mr X made three complaints about the Council’s actions in March, May and July 2020. The Council responded on each complaint at Stage 1 of the statutory process. Mr X was dissatisfied with each Stage 1 response and asked that his complaint was escalated to Stage 2.
23. In June and August, the Council agreed to investigate at Stage 2 and told him that it would combine all three complaints.
24. Mr X did not hear from the Council about the Stage 2 investigation. So, he approached his Member of Parliament (MP). In late October, the Council wrote to the MP confirming that Mr X’s three complaints would be combined and investigated at Stage 2. However, the Council explained:

“Unfortunately, due to the unavailability of Investigating Officers and those able to fulfil the Independent Person roles, it has not been possible to progress [Mr X’s] Stage Two complaint as quickly as we would have wished. This situation has been exacerbated by the Covid19 public health crisis leading to significant delays in Stage Two complaint investigations being conducted. [Mr X]l was made aware of this delay in the Stage Two acceptance letter of 24 June 2020 and the [Council] will continue to keep [Mr X] regularly updated with the progress of the investigation”.

25. Since this letter to the MP, Mr X had still not heard from the Council. So, he submitted a complaint to the Ombudsman.

The Council’s comments

26. The Council confirmed that it had not been possible to appoint an independent investigator and independent person. So, the Stage 2 complaint investigation had not begun. The Council says that this is because of problems caused by Covid 19.
27. However, the Council has now agreed a statement of complaint with Mr X and it has commissioned more independent investigating officers. So the Council plans to start the Stage 2 investigation in mid-March 2021.

Analysis

28. We recognise that Covid 19 has had an adverse impact for all councils and it may have been more difficult to commission Stage 2 investigations. But working virtually is becoming more commonplace and it is likely that independent investigators and persons may also be doing so. So, on the face of it, there is fault by the Council in its delay in commissioning a Stage 2 investigation into Mr X’s complaints.
29. However, at this stage, it was important to ensure Mr X’s complaints were investigated at Stage 2 as the Council said would happen. Hence, our focus has been to ensure that this happened.
30. However, once Mr X has completed the statutory complaints procedure, and if he remains dissatisfied and resubmits the complaint to the Ombudsman, we might consider further the impact of the Council’s delay in investigating his complaints.

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Agreed actions

31. To resolve this complaint, the Council has:

• agreed a statement of the complaints with Mr X;
• will appoint a Stage 2 independent investigator and person within three weeks of today’s date; and
• will apologise to the complainant for its delays within four weeks of today’s date.

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Final decision

32. There has been an excessive delay by the Council in commissioning a Stage 2 investigation. That is fault causing an injustice. But the Council has now agreed to start the Stage 2 process, and this resolves the complaint.
33. Accordingly, I have completed my investigation and am closing the complaint.

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Parts of the complaint that I did not investigate

34. I have not investigated Mr X’s substantive complaints about the Council’s actions.

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Investigator's decision on behalf of the Ombudsman