Summary: Ms X complained her family were not well supported by the Council as kinship carers, leading to the children being removed from their care. The Ombudsman does not normally re-investigate complaints that have been independently considered through the children’s statutory complaints procedure and we find this case has correctly followed the steps. However we find fault with the Council for initially refusing to progress Ms X’s complaint to Stage 3. This caused injustice and the Council has agreed to apologise and make a financial remedy.

The complaint

1. Ms X complains:
1. she and her mother did not receive enough support from the Council as kinship carers
2. the children were wrongly removed from their care
3. the statutory complaints procedure failed to investigate her complaints properly
2. Ms X says the Council’s actions have caused her and her mother stress leading to health problems.

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What I have investigated

3. I have investigated complaints 1.a) and 1.c). I explain at the end of this decision statement why I have not investigated complaint 1.b).

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

8. I considered the information provided by Ms X and the Council.
9. I considered the relevant law and statutory guidance.
10. I read the Scope of Complaint for the new complaint which is currently being investigated by the Council.
11. I considered our Guidance on Remedies.
12. I considered comments made by Ms X and the Council on my draft decisions before coming to this final decision.

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What I found

The Children’s statutory complaints procedure

13. There is a formal procedure, set out in law, which councils must follow to investigate certain complaints about children’s services. The procedure aims to ensure concerns are resolved swiftly and, wherever possible, by the people who provide the service locally. This formal procedure applied to Ms X’s complaint.
14. Statutory guidance (the guidance) provides details of what may form the subject of a complaint under this procedure. This includes all local authority functions within Part 3 of the Children’s Act 1989, which sets out the services councils must provide for children and their families in their area. The Guidance says a complaint may arise because of many things such as:
• an unwelcome or disputed decision;
• concerns about the appropriateness or quality of a service;
• the impact on a child or young person of the application of a local authority policy; or
• delivery or non-delivery of services including complaints procedures.
15. The children’s statutory complaints procedure involves three stages:
• Stage 1 - Local resolution by the council.
• Stage 2 – an investigation by an investigating officer not involved in the service who will prepare a detailed report and findings. The investigation is overseen by an independent person to ensure its impartiality. The council then issues an adjudication letter which sets out its response to the findings.
• Stage 3 – an independent panel to consider their outstanding issues.
16. Section 3.1.5 of the guidance says:

“Where a complaint is accepted at Stage 1, the complainant is entitled to pursue their complaint further through the procedure, except in the case of cross boundary issues. In all other instances, once a complaint has entered Stage 1, the local authority is obliged to ensure that the complaint proceeds to stage 2 and 3 of this procedure, if that is the complainant’s wish.”

17. Section 3.1.2 of the guidance includes the requirement for the stage 2 investigation to be completed within a maximum of 65 days.

What happened

18. Ms X complained to the Council as she and her mother felt they received a lack of support as kinship carers and the Council had wrongly removed the children from their care.
19. This complaint met the criteria to be considered under the children’s statutory complaints procedure and the Council began the procedure in October 2020.
20. An independent person oversaw the investigation and wrote a report confirming their agreement to its conduct and the findings. Agreement between Ms X and the Council about the scope of this investigation took some time to complete. The stage 2 investigation was completed within the required timescale when calculated from the point the complaint summary was agreed.
21. After stage 2, the complainant exercised her right to request the complaint be moved to stage 3 in March 2021 and the Council declined to do this. The Council’s decision was not in line with the guidance and the complainant came to the Ombudsman.
22. The Council agreed to consider the case at Stage 3 after we drew this fault to its attention.
23. The resulting Stage 3 Panel’s findings were ‘not upheld’ for sixteen of Ms X’s complaints and her remaining three complaints were found to be ‘no finding’ or ‘partially upheld’.
24. The Stage 3 Panel made recommendations to the Council for improving the service for connected carers which the Council has accepted. The Council has also provided us with details of how these recommendations have been implemented.
25. The Council correctly signposted the complainant to us following the conclusion of the statutory complaints process and we began the process of investigation.
26. However shortly after, the Council said it was not satisfied that it had investigated all of Ms X’s complaints through the original complaints process and decided, unusually, to start a second statutory complaints process.
27. In this new complaint, the Council is considering 31 additional complaints by Ms X which all relate to the essence of the original complaint. Many of the new complaints were broadly, if not explicitly, considered during the first complaints process.
28. This second complaints process has not yet concluded and so we are not investigating it here.

My findings

29. The children’s statutory complaints procedure has independent oversight built into it by law. For this reason, the Ombudsman does not normally re-investigate these types of complaints. Instead we look at whether procedures were correctly followed. The stage 2 investigation took time for finalisation of agreement of scope. Taking this into account, the Council completed the investigation without fault.
30. Ms X had to go to time and trouble seeking the help of the Ombudsman to escalate the complaint to stage 3 when it was always her right to do so. This right is clearly set out in Section 3.1.5 of the guidance. This is fault on the part of the Council, causing distress and frustration. I have recommended a remedy.
31. While it should be possible for a Council to consider all of someone’s complaint through a single passage of the statutory procedure, in this case Ms X’s complaints were multi-part, complex and difficult to separate from other already answered complaints.
32. It is rare for a Council to agree to consider matters through the statutory procedure twice but the Council agreed to do so. The Council is best placed to remedy any injustice arising from complaints not being investigated, by investigating them. I am satisfied that the Council is doing this by carrying out a second complaint investigation. Its decision to do so does not mean the scope of the original investigation was flawed.
33. The Council should continue to investigate its second statutory complaint on this matter. Once this has concluded, if Ms X is dissatisfied it is open to her to ask us to consider the matter again.

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Agreed action

34. Within one month of the date of my final decision statement, the Council has agreed to:
1. Pay £150 to Ms X to acknowledge her avoidable time and trouble when she was misadvised regarding her right to escalate the complaint to stage 3.
2. Apologise to Ms X and her mother for the incorrect advice they received regarding escalation to Stage 3 of the complaints procedure.

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Final decision

35. I have completed my investigation. I have found fault causing injustice and the Council has agreed to remedy the fault.

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Parts of the complaint that I did not investigate

36. I did not investigate complaint 1.b) because decisions regarding where children reside are matters for the family court rather than the Ombudsman.

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Investigator's decision on behalf of the Ombudsman