Decision : Upheld
Decision date : 09 Dec 2021
The Ombudsman's final decision:
Summary: the Council was at fault in its handling of Ms B’s complaint under the children’s complaints procedure because it failed to offer her a review panel at stage 3 of that process. It also failed to provide her with copies of her social care records which it agreed to after stage 2 of that procedure. These failings caused her injustice. The Council will take the action recommended to acknowledge and remedy this injustice.
- The complainant, whom I shall refer to as Ms B, complains that the Council failed to offer her the opportunity to have her complaint, which was considered at stage 2 of the children’s statutory complaint process in 2015, considered at stage 3 of that procedure as she was entitled. She also says that some of the actions the Council agreed to take at the end of stage 2 were not completed.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I discussed the complaint with Ms B and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
- I carefully considered whether we should investigate this complaint given the events complained about happened in 2015. However, the evidence suggests that Ms B was not told of her right to progress to a stage 3 review panel at that time and that she did not receive advice that she could until she approached an external agency in 2020. For this reason I do not consider this restriction on time is applicable in this instance.
- Ms B and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
- 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.
What I found
What should have happened
- The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
- The law is accompanied by regulations and guidance which provide more details on how to deal with complaints. The guidance “Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others” states that where a complaint is accepted under the children’s complaints procedure the complainant is entitled to pursue the complaint through all three stages of that procedure and the Council is obliged to do so if the complainant wants this.
- The guidance also confirms that councils do not need to consider complaints made more than one year after the grounds for the complaint arose. They have discretion to do so however and may chose to do so if, for example, they consider it would not have been reasonable for the complainant to have made the complaint earlier.
- The guidance confirms that the stage 2 adjudicator must provide details of the complainant’s right to have the complaint considered by a review panel at stage 3 of the procedure if they are dissatisfied. Complainants should be told they have 20 working days to submit such a request.
- The guidance states that the role of the review panel includes a focus on resolution of the complaint, to make recommendations that provide practical remedies, identify injustice to the complainant where complaints are upheld and to recommend appropriate redress and recommend any service improvements.
- Panels must be made up of three independent people. The complainant is entitled to attend and may be accompanied by another person. Additionally, the people who were involved with the stage 2 investigation should be invited to attend. Paragraph 3.15.2 of the guidance states that if any of those people at stage 2 be unavailable so that a long delay would be caused the chair of the panel can take a view to proceed without them. In addition the guidance states that where an adjudicating officer has accepted all the findings of the stage 2 investigation they can delegate attendance at the panel to someone else.
- Part 6 of the guidance confirms that review panels can consider financial redress including payments of compensation or to recognise distress, lost opportunity and time and trouble.
- In 2015 the Council investigated a complaint Ms B made that the Council’s children’s services team had failed to properly protect her when she was a child. The complaint dated back to the 1980s and 1990s. The investigator at stage 2 of the statutory complaints procedure upheld one of Ms B’s complaints, partially upheld another and decided she could not reach a decision on the two other complaints.
- The complaint that was upheld was that the Council took insufficient action to protect Ms B’s younger siblings when she made an allegation that a member of her family had sexually abused her for many years when she was a child. Her younger siblings were still children at the time she told the Council about this.
- The complaint that was partially upheld was that the Council had failed to protect her from neglect by her parents when she was a child and that this negatively affected her physical and psychological health. It seems the reason this was partially upheld was that the records that the investigator could locate were limited and so she could not definitely conclude that Ms B’s parents had neglected her and that this caused her harm. She did however find evidence that the Council had received a number of referrals about the neglect of Ms B and her siblings and that any response by the Council was ineffective as nothing appeared to change. She was also of the view that during the period in question there was a poorer understanding of the impact and importance of neglect of children and that councils’ responses to that then were not as comprehensive as they would be now.
- Of the two complaints where the investigator was unable to reach a view, one related to another body so she could not address that and the other was about an alleged failure by the Council to provide Ms B with access to her social care records. The investigator concluded that there was no evidence of Ms B requesting these previously so she could not reach a view.
- The adjudicator, the then Director of Children’s Services, issued his written adjudication of Ms B’s complaint at stage 2 of the statutory complaints procedure in June 2015. In it he accepted the investigator’s findings and apologised for the fully upheld complaint. He also said that he understood the complaints officer/Access to Records Officer was in the process of finalising Ms B’s request to access her social care records and that arrangements were “in hand” for her to view them. He concluded by saying that he apologised for the failure that had occurred and said he would like to reassure Ms B that the Council had “robust arrangements in place and effective action is now taken against similar allegations of abuse”.
- The stage 2 adjudication letter did not advise Ms B of her right to request further consideration at a review panel at stage 3 of that procedure.
- Ms B says that she asked for further consideration of her complaint at the time but was told that this wouldn’t be agreed as the stage 2 consideration had addressed everything. There does not appear to be any record of this request and Ms B says she made the request by telephone.
- In 2020 Ms B contacted the Council again to ask for consideration of her complaint at stage 3 of the complaints procedure. As I understand it she did so after obtaining advice from a specialist organisation that she was entitled to this. She understood that the Council was then considering how to handle her request and was seeking its own legal advice on how to proceed. When she heard nothing more Ms B contacted the Ombudsman after a legal advisor told her she could do that.
- The Council advised us that it agreed it did not seem that Ms B had been told of her right to proceed to stage 3 in 2015. The Council says that its children’s services team underwent a reorganisation in 2018/19 so none of the teams and managers from then were still in place when Ms B reapproached the Council in 2020. The Council confirmed it was seeking legal advice on how to proceed after it contacted the Local Government Ombudsman’s office to ask how to proceed and we advised that as so much time has passed the best way forward may be progress a new complaint to stage 1 of the statutory procedure to look at the failure to offer Ms B the opportunity to ask for a stage 3 review panel in 2015. The Council decided to ask its legal team for further advice on this suggestion and when none was received after Ms B complained to this office we decided to pursue the complaint.
- The adjudication of stage 2 stated that whilst there was no evidence that Ms B had previously asked to see her personal records (and therefore the stage 2 investigator decided she could not make a finding on the complaint that the Council had failed to respond to such requests) that the complaints officer/access to records officer was in the process of finalising this request and arrangements were “in hand” to enable Ms B to view her records. In response to my enquiries on this complaint the Council said that Ms B had asked about viewing her case files in August 2021. The officer she emailed was unwell and off work at the time but on his return in September told Ms B that he had forwarded her subject access request to the relevant department and that they would contact her “in due course”.
- Also in its response to my enquiries on this complaint the Council said it had now received the advice of its legal team on undertaking an investigation at stage 1 of the complaints procedure to address the failure to offer a stage 3 panel in 2015. This is not required as I have now investigated the complaint.
Was the Council at fault and did this cause injustice?
- The Council clearly decided that Ms B’s complaint should be considered under the statutory process even though it related to matters that had happened a long time ago. However, Ms B was denied the opportunity to have her complaint considered at stage 3 of the complaints procedure in 2015. She was not told of her right to request consideration at a review panel in the stage 2 adjudication letter and this is fault. This caused Ms B injustice as she was denied the opportunity of a review panel. A review panel may have reached a different view on the complaints where no decision was reached at stage 2 or considered a remedy for the upheld complaints.
- The adjudication of stage 2 states that arrangements were being made for Ms B to view her children’s social care records. This was clearly not followed up at the time as it has still not been completed and there is no apparent sense of urgency to do so now. This also amounts to fault. This fault caused Ms B injustice as she has still not been able to access her records.
- The Council will apologise for the failure to advise Ms B of her right to progress to a review panel stage 3 of the statutory complaints procedure in 2015.
- The Council will make a payment of £500 to Ms B to recognise the injustice caused in the form of avoidable frustration and a significantly delayed opportunity to have the matter considered by an independent review panel.
- The Council will also apologise for the failure to deal with Ms B’s request to see her files as it said it would in 2015. This has still not been resolved despite a further request from Ms B. The Council will make a payment to Ms B of £500 to recognise the frustration and distress this failure caused her. If it has not already completed the process of providing these files following Ms B’s further request in August the Council will do so within one month of the date of the final decision on this complaint.
- The Council will make a further payment of £500 to Ms B to recognise the avoidable time and trouble she has been caused in having to pursue a complaint in order to resolve these failings in the handling of her original complaint.
- In order to put Ms B back in the position she would have been if the fault had not occurred the Council will now arrange a review panel to consider her complaint at stage 3 of the statutory complaints procedure. It will arrange this for one month after Ms B receives the copy of her records so that she has the opportunity to consider these before the panel meeting. In making this recommendation I fully recognise the amount of time that has passed but this is not in any way attributable to Ms B and, having considered the guidance, I consider it is still possible to complete this even if those involved in the stage 2 consideration are no longer available as there is provision for such eventualities in the that guidance. I also recognise that our original suggestion was that the Council should arrange for consideration of the failure to offer a stage 3 review panel in a new complaint at stage 1 of that procedure now. However that view was reached before we had fully investigated the matter and I do not now consider that would be the best approach having considered the matter more closely.
- The Council was at fault in its handling of Ms B’s complaint under the children’s complaints procedure because it failed to offer her a review panel at stage 3 of that process. It also failed to provide her with copies of her social care records which it agreed to after stage 2 of that procedure. These failings caused her injustice. The Council will take the action detailed above to acknowledge and remedy this injustice.
Investigator's decision on behalf of the Ombudsman