Summary: Ms B complains about the way the Council responded to a child protection referral about her children. We find fault with the Council for failing to complete the statutory complaint process. This caused Ms B injustice. The Council agrees actions to remedy the injustice.

The complaint

1. Mrs B complains about the way the Council responded following a child protection referral about her children in December 2018.
2. She says:
• It is unclear why her children remain subject of a child protection plan.
• The Council failed to investigate the inconsistencies in professionals correspondence about her children’s medical diagnosis.
• The Council continue to give her reports less than 24 hours before meetings and ignore the corrections.

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The Ombudsman’s role and powers

3. 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)
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.
5. 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

6. I reviewed the information Ms B provided with her complaint. I made enquiries with the Council and considered its response with the relevant law and guidance.
7. Ms B and the Council had the opportunity to comment on my draft decision. I carefully considered the comments I received.

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What I found

Law and guidance

8. The Children Act 1989 established the requirement for councils to have a formal representations procedure to deal with complaints about local authority functions under Part 3 of the Act and some sections of Parts 4 and 5.
9. In 2006 guidance was issued to accompany the regulations ‘Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others’.
10. The handling and consideration of complaints under the Children Act 1989 consists of three stages:
• Stage 1: Staff at point of service delivery try to resolve the complaint.
• Stage 2: An investigating officer (IO) and an independent person (IP) investigate the complaint. The IO is responsible for the investigation and the IP ensures the process is open, transparent and fair.
• Once the IO has finished the report, a senior manager should act as Adjudicating Officer (AO) and consider the complaints, the IO’s findings, conclusions, and recommendations, any report from the IP, and the complainant’s desired outcomes. The AO will prepare a response to the reports and should invite the complainant to an adjudication meeting, either before or after writing their adjudication.
• Stage 3: The complaint is considered by a review panel. The Panel must consist of three independent people.
11. Review Panels are designed to:
• listen to all parties;
• consider the adequacy of the stage 2 investigation;
• obtain any further information and advice that may help resolve the complaint to all parties’ satisfaction;
• focus on achieving resolution for the complainant by addressing his clearly defined complaints and desired outcomes;
• reach findings on each of the complaints being reviewed;
• make recommendations that provide practical remedies and creative solutions to complex situations;
• support local solutions where the opportunity for resolution between the complainant and the local authority exists;
• to identify any consequent injustice to the complainant where complaints are upheld, and to recommend appropriate redress; and
• recommend any service improvements for action by the authority.
12. The timescales in working days for the procedure are:
• 10 days at stage 1 (with a further 10 days for more complex complaints or additional time if an advocate is required);
• 25 days at stage 2 (with maximum extension to 65 days);
• 20 days for the complainant to request a Review Panel;
• 30 days to meet and hold the Review Panel at stage 3;
• 5 days for the Panel to issue its findings; and
• 15 days for the local authority to respond to the findings.

Early referrals to the Ombudsman

13. In a limited number of cases, Councils can refer the complaint to the Ombudsman after stage 2. Stage 2 must have delivered:
• a very robust report;
• a complete adjudication;
• an outcome where all complaints have been upheld (or all significant complaints relating to service delivery in respect of the qualifying individual); and
• the local authority is providing a clear action plan for delivery; and
• the local authority agrees to meet the majority or all of the desired outcomes presented by the complainant regarding social services functions.
14. Otherwise, the complainant retains the right to proceed to a Review Panel.
15. In March 2015, the LGO published a thematic report highlighting learning from its investigations into the Children Act complaints system, ‘Are we getting the best from children’s social care complaints?’. A common issue raised was delay in the complaints procedure. The report gave councils advice about how to avoid this fault.

Background

16. Ms B is in a relationship with Mr C. They have three children, D, E and F.
17. In 2016 there were child protection concerns in relation to D and E. Professionals were concerned parents were reluctant to administer D and E medication for diagnosed medical conditions.
18. The Council sought legal advice and were told the threshold for children’s services intervention was not met. The case was closed in October 2017.

What happened

19. In December 2018 E attended hospital. A nurse made a child protection referral on the basis that parents:
• Failed to disclose E’s underlying health condition in Accident and Emergency.
• Denied E had the health condition to the consultant.
• Lied about a follow up appointment.
20. Ms B complained to the NHS trust.
21. In July 2019 the children were made subject of a child protection plan under the category of neglect. Ms B complained to the Council.
22. In August 2019 Ms B received a complaint response from the NHS trust.
23. Between August and November 2019 Ms B’s complaint progressed through stage one of the complaint process. Ms B was unhappy with the response and requested her complaint progressed to stage two.
24. In April 2020 the Council provided its adjudication letter to Ms B and Mr C. It upheld six of the nine complaints, partially upheld one, did not uphold one and made no finding on the other.
25. The Council made the following apology:

“Our investigation has concluded that we failed to meet the expected standard of service on this occasion and I want to make an unreserved apology to you for this and the associated impact that this failure has had on you”.

26. The stage two letter also:
• Agreed to provide a medical chronology it requested from the hospital.
• Accepted communication had not been clear and timely. Committed to follow all telephone calls with an email.
27. One of Ms B’s requested outcomes was to change social workers. The Council did not agree to this.
28. The Council also accepted the Investigating Officers recommendations for service improvements.
29. The Council offered Ms B and Mr C £350 compensation in respect of the faults it identified.
30. In May 2020 Ms B asked for her complaint to be considered at stage three. She said her outstanding complaints were:
• The stage two report wrongly says they did not engage with the previous Child in Need plan.
• There was a lack of transparency from children’s services. They were given conflicting information about a professionals meeting and the initial referrals. Ms B would like clarification and a copy of the meeting minutes and referral.
• The NHS trust report found no evidence the parents misled the hospital staff or failed to follow the agreed treatment plan for F. Ms B feels this finding demonstrated a lack of transparency and fairness. She also says it undermines the professional integrity.
• Why are E and F still subject of a child protection plan when the original referral was based on a false allegation.
• Parents do not agree with the decision not to change the social worker.
• The stage two letter says children’s services had not received the medical chronology. But in the stage two report and social workers review it says the chronology had been received.
31. In July 2020 the Council wrote to Ms B. It said it did not think it could progress the complaint further and referred her to the Ombudsman.

My findings

Stage three and early referral to the Ombudsman

32. The guidance is clear that Councils may only justify a variation from the statutory complaints process in exceptional circumstances. It also says the Council should discuss the possibility of early referral with the complainant.
33. The Council did not follow the statutory complaint process. Its response to Ms B’s request for stage three was not in line with the guidance and could be misleading.
34. I set out the role of the review panel in paragraph nine. By refusing to consider the complaint at stage three the Council has denied Ms B her right to have her complaint considered by an independent panel. This is fault.

Delays

35. There were delays at every stage of the complaint process. The guidance sets out the timescales for each stage.
36. There was significant delay at stage two. Stage two should take no more than 25 days (with a maximum extension to 65 days). This stage took 119 days.
37. There were further delays caused by the way the Council responded to Ms B’s request to progress to stage. The Council added an unnecessary stage that is not part of the statutory process. The stage three panel should be held within 30 days of the request. The Council took 43 days to provide Ms B with its response and refused to progress her complaint to stage three. This is fault.
38. The Councils actions added avoidable delay to the process and caused Ms B the additional time and trouble of bringing her complaint to us.

Remedy

39. The Council failed to consider the possible injustice to Ms B and Mr C caused by the faults identified in its stage two response. A stage three panel can consider injustice and recommend an appropriate remedy.

Agreed action

40. Within one month of my final decision the Council agrees to:
• Pay Ms B £250 for the delays, time and trouble it caused.
41. Within 30 working days of my final decision the Council agrees to hold the stage three review panel. Ms B should be given an opportunity to submit any further written information for the panel’s consideration before the papers are circulated.
42. Within two months of my final decision the Council agrees to remind staff dealing with statutory children’s services complaints of:
• The relevant timeframes for each stage and importance of adhering to these.
• The importance of communicating with the complainant about delays and requests for extensions.
• The process for early referrals to the Ombudsman and the limited circumstances when this should be considered.

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Final decision

43. I find fault with the Council causing injustice.

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Parts of the complaint that I did not investigate

44. I have not considered the substantive issues of Ms B’s complaint. The Council agrees to carry out stage three of the statutory complaint process. If Ms B remains unhappy with the response, she can bring her complaint to us and we will consider whether to investigate.

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Investigator's decision on behalf of the Ombudsman