Summary: Mr X complains the Council failed to tell him it had started to investigate concerns raised about his child’s welfare. He also complains the Council failed to carry out a thorough investigation of these concerns. Mr X says the Council discriminated against him and its actions caused him unnecessary stress and financial loss. We have found fault in the Council’s actions and the Council has agreed a remedy to address the injustice caused to Mr X.

The complaint

1. Mr X says the Council was made aware of concerns regarding his child’s welfare in 2019. He complains the Council failed to tell him it had started to investigate these concerns and failed to tell him when its investigation ended.
2. Mr X also complains the Council failed to carry out a thorough investigation. He says the Council has discriminated against him and its actions have caused him unnecessary stress and financial loss.
3. Mr X also complains the Council failed to involve him or tell him what happened regarding a similar investigation in 2016.

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What I have investigated

4. I have investigated the complaints mentioned at paragraphs one and two. The final section of this statement gives my reasons for not investigating the complaint mentioned in paragraph three.

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The Ombudsman’s role and powers

5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
9. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
10. 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)
11. Under our information sharing agreement, we will share our decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

12. I have discussed the complaint with Mr X and considered the information he provided.
13. I have made enquiries to the Council and considered the information it provided.
14. Mr X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

The law, guidance, and policy

15. The Children Act 1989 places a duty on local authorities to safeguard and promote the welfare of children in their area.
16. Section 47 of the Children Act 1989 says local authorities have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm.
17. These duties are set out in the statutory guidance ‘Working Together to Safeguard Children’. When a local authority receives a referral about a child who may be at risk of significant harm it must decide within one working day what type of response is needed. This will include determining whether:

• The child needs immediate protection and urgent action is required.
• The child is in need and should be assessed under section 17 of the Children Act 1989.
• There is reasonable cause to suspect the child is suffering, or is likely to suffer, significant harm. If there is, enquiries must be made, and the child should be assessed under section 47 of the Children Act 1989.
• Any services are required by the child and the family.
• Further specialist assessments are required.
• No further action is required.

18. When a council accepts a referral, the social worker has the lead professional role. The social worker should see the child as soon as possible if the decision is the referral needs further assessment.
19. The child and family must be informed of the action the council intends to take.
20. The council has a maximum timeframe of 45 days to complete the assessment. Assessors should consider the child’s developmental needs, parenting capacity and family and environmental factors. The child’s interests come first. Where a particular need is identified during the assessment, the council should not wait for the assessment to be completed before commissioning services.

The Council’s assessment procedure

21. The Council’s assessment procedure says the social worker should interview the parents and any other relevant family members. (Paragraph 1.2.16)
22. The procedure also says:

“The parents’ involvement in the assessment will be central to its success. At the outset they need to understand how they can contribute to the process and what is expected of them to change in order to improve the outcomes for the child. The assessment process must be open and transparent with the parents… All parents or care givers should be involved equally in the assessment and should be supported to participate whilst the welfare of the child must not be overshadowed by parental needs...” (Paragraph 1.2.42)

The Council’s Local Assessment Protocol

23. The Council’s Local Assessment Protocol says:

“A child must be seen within 5 working days from the point of referral. Where this is not achievable this must be discussed with a Manager and the reasons recorded […]. An alternative timeframe must be rescheduled for seeing the child. This should not exceed 7 working days from the point of referral.” (Paragraph 2.12)

The children’s statutory complaints process

24. Most complaints about children’s social care must follow a series of steps set out in law, known as the children’s statutory complaints procedure. These are:

• Stage 1 – local resolution (within 10 working days, or a maximum extended period of 20 working days)
• Stage 2 – an investigation with an independent person overseeing it (25 working days, or a maximum extended period of 65 working days)
• Stage 3 – a review panel with an independent chair

25. Statutory guidance published in 2006, (Getting the best from complaints), says once a complaint is accepted at Stage 1, the complainant is entitled to pursue their complaint through Stage 2 and Stage 3 if they wish, except under certain circumstances.

Guidance for practitioners

26. We published guidance for practitioners on the children’s statutory complaints process in March 2021. I acknowledge this guidance was not published at the time of the events relating to this complaint. However, the guidance has been published to provide clarity in circumstances such as these.

Events prior to Mr X’s 2019 complaint

27. Mr X has a child, Child A, with his ex-partner, Ms Y. Child A lives with Ms Y but had contact with Mr X as part of a contact arrangements order.
28. Mr X says that in 2016, Child A told him Ms Y’s partner had hit them. Mr X told the Council he was concerned about Child A’s welfare because of what Child A had said.
29. The Council completed an investigation into Child A’s welfare because of the concerns raised by Mr X.
30. In 2016, Mr X complained to the Council that it did not contact him as part of its investigation. The Council upheld Mr X’s complaint.

What happened

31. In May 2019, Mr X says Child A told him Ms Y’s partner had hit them. Mr X reported this to the Police who referred the matter to the Council. Mr X says the Police told him the Council would contact him about his concerns for Child A’s wellbeing.
32. Mr X says he did not receive any contact from the Council. He says an officer from the Children and Family Court Advisory and Support Service (CAFCASS) contacted him in August 2019 to tell him the Council had closed its investigation.
33. Mr X complained to the Council in August 2019. He referred to his 2016 complaint and said the Council had again failed to contact him after raising concerns about Child A’s welfare. Mr X complained the Council had repeated the same mistakes it made in 2016 by not involving him in the investigation and by failing to tell him about the outcome. Mr X complained the Council had acted discriminatively towards him.
34. Mr X said Ms Y had broken the contact arrangements order which meant he had not been able to see Child A for some time. Mr X started a child arrangement order hearing as a result. Contact arrangements for Mr X remain the subject of an ongoing court case.
35. The Council replied to Mr X in September 2019 and said it had investigated his complaint under the children’s statutory complaints procedure. It said it had spoken to Child A and found they did not make any allegations regarding Mr X’s concerns. It said there were no marks or injuries to Child A, and the social worker who visited them had no concerns for their safety.
36. The Council said the social worker had tried to contact Mr X but had been unsuccessful, possibly because they may have called a wrong number. The Council apologised to Mr X and said while it was unsuccessful in contacting him, this was not malicious, and it had not acted discriminatively towards him.
37. The Council also acknowledged receipt of a court order to produce a section 7 report as part of the ongoing court case concerning Mr X’s contact with Child A.

Stage 2 complaint

38. Mr X remained unhappy with the Council’s response and asked for his complaint to be considered at Stage 2. He said the Council had previously told him staff would be reminded of the importance of contacting both parents, but this had not been done. Mr X also complained the Council had not responded to him in a timely manner. He said the Council’s actions left him in a stressed and depressed state and this meant he had to change jobs.
39. Mr X also complained the Council had failed to contact him about the section 7 report. However, he said he wanted his complaint about the Council’s handling of his concerns about Child A’s welfare to be investigated separately from the issues regarding the section 7 report.
40. In November 2019, Mr X had a conference call with the investigating officer and the independent person overseeing the Stage 2 investigation. Mr X said he felt the Council had discriminated against him based on information provided to it by Ms Y and that he had been treated differently because of this. Mr X also said the Council delayed visiting Child A and had not told him the outcome of its investigation.
41. In January 2020, the Council told Mr X it was still investigating his complaint.
42. The investigating officer produced their report in February 2020. The report identified the following:

• The Council did not tell Mr X it had started an investigation
• The Council did not obtain Mr X’s views, thoughts or feelings as part of its investigation
• Because Mr X had not been consulted, he had been treated differently when compared to Ms Y
• The Council did not visit Child A within five days of the referral
• The assessment exceeded 45 working days from referral to completion
• Management oversight of the assessment was lacking

The report upheld Mr X’s complaints about the above points and found they mirrored his complaint from 2016. The report did not uphold Mr X’s complaint the Council did not respond to him in a timely manner.

43. The report made several recommendations for further action to be taken by the Council, including:

• Providing an apology to Mr X
• Reminding staff to follow national and local procedures
• Ensuring case records are accurate and complete

44. The Council provided Mr X with its adjudication of the report in February 2020. It accepted all the findings and recommendations made by the investigating officer and independent person, and it apologised to Mr X. The Council told Mr X he could request a Stage 3 review panel if he remained unhappy with the Council’s response. It also said if Mr X wanted to discuss the matter further, he could call to arrange a meeting.

What happened next

45. Mr X discussed the findings of the Stage 2 investigation with the Council over the telephone. The Council sent an email to Mr X on 6 April 2020 summarising their discussion. It said Mr X continued to hold the view Child A was at risk of harm from Ms Y’s partner and that Mr X had made numerous reports over several years regarding this matter. The Council said it had investigated these alleged incidents when appropriate and had found no evidence to support the allegations.
46. The Council said it acknowledged it should have told Mr X about the outcome of its investigation. However, it said because of the circumstances, Mr X could not have contributed further because he had given all the information in his knowledge as part of the report he initially made.
47. Mr X replied to the Council on the same day. He disagreed with the Council and maintained he believed its investigation had not been thorough.
48. In July 2020, the Council received a request from the courts for an addendum to the section 7 report.
49. Mr X complained to the Council again in July 2020. He said he had been waiting since April 2020 for the Council to contact him so he could discuss his complaint further. Mr X said the Council had ignored him and that he believed this was due to racial discrimination.
50. The Council replied in August 2020. It apologised to Mr X for the lack of response and said it appeared this was due to confusion by the Council regarding its next steps. However, the Council said it had made its position known and that its view was that communication with Mr X had come to a natural conclusion.
51. The Council referred to the section 7 report and said it provided this in May 2020. It said the Children Act 1989 Representations Procedure (England) Regulations 2006 (regulation 8) gave the Council “discretion to decide whether to consider complaints where to do so could prejudice concurrent investigations” including court proceedings. The Council said it was “not able to accept a complaint about matters that are currently the subject of parallel proceedings as to do so could interfere that ongoing legal process.”
52. As a result, the Council said Mr X’s complaint and its involvement with it was closed. The Council said Mr X should challenge the content of the section 7 report in court and the complaints process could not assist with this.
53. Mr X remained dissatisfied with the Council’s response and brought his complaint to us.

Analysis

54. I have exercised discretion in investigating Mr X’s complaint back to May 2019. This is because Mr X was following the statutory complaints process and received his last complaint response in August 2020. Mr X brought his complaint to us within 12 months of that response.

Mr X’s complaint the Council did not tell him it had started its investigation

55. There is no evidence the Council contacted Mr X once it decided to carry out an assessment under section 17 of the Children Act 1989. The Stage 2 investigation upheld this aspect of Mr X’s complaint and the Council’s adjudication accepted this finding. My review of the evidence also supports this view.
56. The only record of attempted contact with Mr X is from June 2019 when the Council says it tried to call him as part of its assessment. The Stage 2 investigating officer identified the number called may have been incorrect.
57. I have seen no evidence the Council made any further attempt to contact Mr X. This is contrary to the Council’s assessment procedure as stated at paragraph 22 of this statement, and is therefore fault by the Council.

Mr X’s complaint the Council failed to carry out a thorough investigation

58. The Council says it held a strategy meeting the day after receiving the referral from the Police. I have seen a record of the meeting in which the Council decided the threshold for section 47 enquiries under the Children Act 1989 (the Act) was not met. The Council recorded its reasons for this and its reasons for conducting a Child and Family Assessment under section 17 of the Act instead.
59. I have reviewed the Council’s Child and Family assessment. This provides a record of the actions taken by the Council, including seeking Child A’s views and feelings. The assessment also shows the Council considered other factors such as Child A’s background regarding health, education, and social, emotional and behavioural development.
60. I have not found evidence of fault in how the Council assessed the risk of harm to Child A. However, the evidence confirms Mr X was not included in the Council’s assessment and this aspect of the complaint was also upheld by the Stage 2 investigating officer. The record of the strategy meeting shows the Council considered it necessary to speak to Child A’s parents, and while the Council did speak to Ms Y, it did not speak to Mr X.
61. The Council acknowledged in its Stage 2 adjudication that “it is vital that both birth parents are actively sought out and their views taken into account when assessing a child’s circumstances. Your complaint underlines the absolute importance of this and it is incredibly disappointing that the service […] has made the same mistake twice”.
62. However, the Council’s email to Mr X dated 6 April 2020, said that although it acknowledged it should have told Mr X about the outcome of the assessment, “by definition of the circumstances you could not have contributed further given you gave all the information in your knowledge as part of the report you made initially”.
63. The Council could not have definitively known Mr X was unable to provide any further information because it did not ask him to contribute his views. This failure to seek Mr X’s input as part of the assessment is contrary to the Council’s agreed actions as part of its strategy meeting. It is also contrary to the Council’s own assessment procedure which identifies the value of parents’ involvement and the importance of transparency within the process, and is therefore fault by the Council.

Mr X’s complaint the Council discriminated against him

64. In his Stage 1 complaint, Mr X complained the Council had discriminated against him, but he did not state the type of discrimination he was referring to. The Council’s Stage 1 response gave an assurance the Council had not acted discriminatively and referred to its procedures to ensure both parents are contacted as part of an assessment.
65. The Council’s Stage 2 investigation upheld the complaint it treated Mr X differently when compared to how it treated Ms Y.
66. Mr X’s complaint in July 2020 specified he considered the Council had discriminated against him on racial grounds.
67. It is not for the Ombudsman to determine whether there was racism or racial bias by any of the Council’s officers. This is because only a court can determine whether a body has unlawfully discriminated against an individual on the basis of race.
68. The Ombudsman can, however, decide whether a council has acted with fault when investigating a complaint about racism or racial bias.
69. Procedurally, the Council should have contacted Mr X to ensure it fully understood his views and to obtain any evidence he had to support his claim of racial bias.
70. Instead, the Council told Mr X it could not accept his complaint because of the ongoing court case. It said it considered Mr X’s complaint may prejudice or interfere with the legal process.
71. The Council did not explain why it considered its consideration of Mr X’s complaints may interfere with the court case. As a result, I find fault with the Council’s investigation because it did not seek to clarify with Mr X his claim of racial bias or provide an explanation as to why it considered this may prejudice the court case.

The Council’s complaint handling

72. The court case relates to the child arrangements order and is not the same as the matters complained about. Although the Council is involved in providing section 7 reports for production in court, this is separate from Mr X’s complaints about failing to keep him informed, failing to carry out a thorough investigation and his complaint of discrimination.
73. The Children Act 1989 Representations Procedure (England) Regulations 2006 (Regulation 8) refers to proceedings in any court in the context of the complainant stating in writing to the local authority that they intend to take court proceedings. I do not consider the reason stated by the Council for not proceeding to Stage 3 is in line with the context of the above part of the Act. It is the contact arrangements which are the subject of court action, not Mr X’s complaint about the Council.
74. Mr X told the Council he remained unhappy about the Council’s response in his letter dated 21 July 2020, but the Council’s response was that it considered the matter had come to a natural conclusion.
75. Although the Council can decide not to investigate a complaint if it would prejudice a concurrent investigation, if it does so, it should decide if it is possible to investigate some of the complaint without prejudicing the other investigation.
76. I acknowledge Mr X referred to the section 7 reports in his letter of 21 July 2020, but this is not the sole aspect of his complaint. He said he was unhappy about what he says is the Council’s failure to investigate his concerns, and this is the same issue which was investigated up to Stage 2. As this is not the subject of court proceedings, a Stage 3 hearing was appropriate.
77. In addition, during the meeting at Stage 2 between Mr X and the investigating officer, the investigating officer said they “could not look at the section 7 in any way”. This demonstrates the investigating officer separated the complaints under investigation from the issues regarding the court case. Therefore, it was appropriate for the complaints process to progress to Stage 3 once Mr X told the Council he remained unhappy after the Stage 2 response.
78. The Council is therefore at fault for not progressing Mr X’s complaint to Stage 3 of the statutory complaints procedure.

Delay in visiting Child A

79. Although the evidence shows the Council held a strategy meeting within one day of receiving the referral from the Police, it did not visit Child A within the maximum seven working days from the point of referral. This is contrary to the Council’s Local Assessment Protocol and is therefore fault by the Council.

Delay in the statutory complaint process

80. Mr X asked for his complaint to progress to Stage 2 on 16 September 2019. The Council’s Stage 2 adjudication was completed on 26 February 2020. The time taken to conclude the Stage 2 investigation was therefore longer than the maximum 65 working days. I find this drift to be fault by the Council. This delay was acknowledged in the investigating officer’s report.

Injustice to Mr X

81. Having identified fault, I must consider whether this caused Mr X a significant injustice. Mr X says this matter has placed a strain on his relationship with his son, and he says he feels victimised by the Council. He also says the Council’s actions have caused him stress which contributed towards him leaving his job, and this led to financial loss. He says he has also spent a lot of time and trouble pursuing his complaint. Mr X also says the Council failed to provide support to Child A.
82. I acknowledge Mr X’s comments regarding the stress he says he has experienced, and his comments about the strain this matter has placed on his relationship with Child A. However, I cannot attribute this stress and strain solely to the actions of the Council, as Mr X was also involved with the child arrangements order hearing at this time. I consider the court case regarding Mr X’s access to Child A would have contributed to his feelings of stress. I cannot therefore draw a direct link from the Council’s actions and Mr X leaving his job, as other factors were also present.
83. As previously stated, it is not for the Ombudsman to determine whether there was any racial bias by the Council. However, I consider Mr X was caused avoidable distress and frustration by the Council’s failure to seek clarification about his concerns regarding this matter. I consider the Council’s failure to seek Mr X’s views as part of the Child and Family assessment also added to this frustration and distress.
84. It is not known whether the outcome of the visit to Child A would have been different had the Council visited them within five days. The evidence shows neither the Police nor the Council observed physical harm to Child A, either at the point of referral or at the time of the visit. The evidence does not support Mr X’s view the Council failed to provide support to Child A and there is no evidence of injustice to Child A because of the Council’s delay.

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Agreed actions

85. To address the injustice arising from the fault identified, the Council has agreed to take the following action:

• Provide an apology to Mr X within 4 weeks of the final decision;
• Make a payment of £100 to Mr X in recognition of the avoidable distress and frustration caused to him. This payment should be made within 4 weeks of the final decision;
• Make a further payment to Mr X of £100 in recognition of the time and trouble taken in pursuing the complaint, and the delay in the complaint handling process. This payment should be made within 4 weeks of the final decision;
• Remind staff to adhere to its assessment procedure, Local Assessment Protocol, and the timescales set out in the Children Act 1989. This should be done within 4 weeks of the final decision, and
• Progress Mr X’s complaint to Stage 3, in line with our guidance on the children’s statutory complaints process. This should be done within 3 months of the final decision.

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Final decision

86. I have found fault by the Council and the Council has agreed to take the above action to address the injustice caused. I have therefore concluded my investigation.

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Parts of the complaint that I did not investigate

87. I have not investigated Mr X’s complaint about the Council’s alleged failure to involve him or tell him what happened as part of its investigation in 2016. This is because Mr X did not bring this complaint to us within 12 months of the issues complained about.
88. As stated at paragraph seven, we cannot investigate late complaints unless we decide there are good reasons. I consider there are no good reasons demonstrated for us to exercise discretion to investigate back to 2016 as Mr X could have brought this complaint to us sooner.

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Investigator's decision on behalf of the Ombudsman