Summary: Mr C complains about the actions of the Council towards himself and his child, D. The Council considered his complaint at stage one of the statutory children’s complaints procedure but refused to further consider it at stage two. We find fault with the Council for denying Mr C the opportunity to progress his complaint through the statutory complaint’s procedure. An injustice was caused to Mr C by putting him to the time and trouble of complaining to the Ombudsman. To remedy the injustice the Council has agreed to apologise to Mr C, consider his complaint at stage two and make staff aware of this complaint to share learning from it.

The complaint

1. Mr C complains about the involvement of the Council with himself and his child, who I will call D, in 2012. Mr C complains the Council

• Mishandled an allegation of domestic abuse,
• Aided his ex-partner in custody proceedings by not carrying out investigations properly.
• Failed to investigate his concerns about his child, D.

Mr C complains the Council’s mishandling of an allegation and failure to investigate properly contributed to the neglect of D and aided his ex-partner in custody proceedings.

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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. 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.

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How I considered this complaint

5. I have spoken with Mr C by telephone and considered the correspondence in support of his complaint.
6. I have made enquiries with the Council and considered the documentation provided. I have also taken account of the Getting the Best from Complaints.
7. I sent a draft to Mr C and the Council and have taken their views and comments into account before making a final decision.

Statutory Complaint Procedure

Getting the Best from Complaints

8. The Children Act 1989 defines the representations procedure as being for ‘representations (including complaints)’.
9. There is a formal procedure, set out in law, which the Council must follow to investigate certain types of complaint. There are three stages:

• Stage One - Local Resolution
• Stage Two – Investigation
• Stage Three – Review and Panel

10. The statutory guidance says:

• Where a complaint is accepted at stage one the complainant is entitled to pursue their complaint further through the procedure (unless it is a cross boundary complaint).
• If a complaint has entered stage one the local authority is obliged to ensure the complaint proceeds to stages two and three if the complaint requests this.
• It is expected the majority of complaints should be considered and resolved at stage one. If both parties believe it would not be appropriate to consider the complaint at stage one they should discuss this together.
• When the complaint is not resolved at stage one the complainant has the right to request consideration of the complaint at stage two. Stage two commences either when the complainant requests it or where the complainant and the local authority have agreed that stage one is not appropriate.
• The complaints manager should arrange for a full and considered investigation of the complaint to take place without delay.
• Considerations of the complaint at stage two should be fair, thorough and transparent with clear and logical outcomes.
• Consideration of complaints at stage two are normally achieved through an investigation conducted by an investigating officer and an independent person.
• The authority should appoint an investigating officer (IO) to lead the investigation and prepare a written report for adjudication by a senior manager.
• An independent person (IP) must be appointed to the investigation. This person should be in addition to the IO and must be involved with all aspects of consideration of the complaint.
• The local authority should write to the complainant with their response containing a complete copy of the investigation report. Any report from the IP and the adjudication and contain the complainant’s right to have the complaint submitted to a review panel if he is dissatisfied.
• The response must contain details of the complainant’s right to have the complaint submitted to a stage three review panel if they are unhappy with the stage two outcome. The letter must tell the complainant they have 20 working days to make the request.

What I found

11. Mr C says he found out about the extent of the Council’s involvement with his child, D, after disclosure from a Subject Access Request. This gave Mr C access to information about himself and his child held by the Council.
12. Mr C complained to the Council at the end of 2019. He explained the complaint was about both his and Ds involvement with children’s services in 2012.
13. The Council at first refused to investigate Mr C’s complaint stating it was out of time. However, it used its discretion to start an investigation into the complaint when Mr C explained he had received a lot of disclosure from the Subject Access Request earlier in the year which had taken time to review. The Council started an investigation into Mr C’s complaint at stage one of the statutory complaints process.
14. The Council replied by letter to Mr C in January 2020 at the end of its stage one investigation. The Council did not uphold any of Mr C’s complaints but told him if he was unhappy with the elements that had not been upheld, he could raise his concerns.
15. Mr C replied in February 2020 disagreeing with the Council’s findings. He said he was unhappy with the investigation and felt that his complaint should have been upheld. He asked the Council to explain what would happen next.
16. The Council responded to Mr C’s email in April 2020 upholding the decision of the investigator in the first response letter. The Council said another senior manager had reviewed the complaint and the stage one outcome. It decided it still would not be looking into the matter. It also said the time that had passed between the Council’s involvement and the initial complaint meant Mr C’s complaint could not be investigated.
17. Mr C disagreed with the reply from the Council and asked that his complaint progress to stage two of the statutory complaints process so an independent investigator could investigate.
18. The Council refused to review his complaint at stage two. It said the outcome of any stage two investigation was likely to be the same as the response received at stage one as it would be drawn from the same evidential base. It said the children’s services complaints team believed the investigation had been concluded. The Council also said it had reached a “natural conclusion” and any further investigation would be “unlikely to bring about any change of position or a different outcome.”
19. Mr C replied stating he was unhappy with the Council’s replies to his stage one investigation and felt the investigation had not been investigated properly or thoroughly by the Council. He then complained to the Ombudsman.

Was there fault leading to injustice?

20. As I have explained, Mr C had a right to request a stage two investigation of his complaint according to the statutory guidance, which itself reflects the law. It is very clear on that point. The Council should not have accepted Mr C’s complaint at stage one of the statutory complaints procedure if it had no intent of allowing it to progress further. The Council’s refusal to accept Mr C’s complaint for a stage two investigation is fault.
21. The Council’s refusal has caused Mr C a significant injustice. If the Council had followed the statutory guidelines Mr C would have had the opportunity to have his complaint investigated by an independent investigator. Mr C also had to go to the time and trouble to complain to the Ombudsman about this matter.

Agreed actions

The Council has agreed to take the following action within four weeks of the final decision:

• Apologise to Mr C for putting him to the time and trouble of complaining to the Ombudsman.
• Start a statutory stage two investigation into the complaints raised by Mr C.
• Share a copy of this decision with complaint managers to capture learning from it and remind staff they should follow the statutory complaints procedure.

Final decision

22. We find fault with the Council for not following the statutory complaints procedure which led to injustice of time, trouble and delay for Mr C. The Council has agreed to remedy this so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman