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Hertfordshire County Council (21 005 728)

Category : Children's care services > Child protection

Decision : Upheld

Decision date : 30 Mar 2022

The Ombudsman's final decision:

Summary: The Council is at fault as it did not properly consider whether it should investigate Ms X’s late complaint and it did not consider investigating the complaint through the children’s services statutory complaints procedure. As a result Ms X missed the opportunity to have her complaint considered through the statutory complaints procedure. The Council has agreed to remedy this injustice by now investigating Ms X’s complaint starting at stage two of the statutory complaints procedure.

The complaint

  1. Miss X complains that the Council failed to take appropriate action to safeguard her daughter, Y, when she raised concerns about the risk her former partner posed to her.

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The Ombudsman’s role and powers

  1. 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)
  2. Ms X’s complaint is late. But we have exercised discretion to investigate the complaint as Ms X’s health prevented her from making a complaint to us sooner.
  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. 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

  1. I have:
  • Considered the complaint and the information provided by Ms X;
  • Discussed the issues with Ms X;
  • Made enquires of the Council and considered the information provided;
  • Invited Ms X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

  1. Councils 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. They must decide whether they should take any action to safeguard or promote the child’s welfare. (Children Act 1989, section 47)
  2. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.
  3. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
  4. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
  5. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.
  6. The Children Act 1989 Representations procedure (England) Regulations 2006 provide complaints should be made no later than one year after the grounds to complain arose. The statutory guidance states there should generally be a presumption in favour of accepting a late complaint unless there is good reason against it.

What happened

  1. Ms X has a daughter, Y with her ex-partner, Mr Z. In 2017 Y’s school made a referral to the Council. It said Ms X had disclosed Y had seen inappropriate content on Mr Z’s computer and sexual abuse of Y some years earlier.
  2. The case was escalated for a joint investigation between the Council and the police and the matter was considered at a strategy meeting. The meeting decided Y should be pre-assessed to give her the opportunity to make disclosures of abuse. The Council’s records show Y did not make any disclosures or raise any concerns. Following a further strategy meeting the police took no further action. The Council carried out an assessment to see whether Y was a child in need. The assessment concluded Ms X and Y could benefit from help from the Intensive Family Support Team.
  3. In 2018 the police notified the Council of an incident of domestic violence between Ms X and Mr Z. The Council’s records note Y was not present during the incident or at risk. Ms X raised concerns with the Council that Mr Z could pose a risk to Y. The Council signposted Ms X to various organisations for support with domestic violence. It also advised that it would be a matter for a family court to decide if Y was at risk in her father’s care. Further records note the main presenting concern was the issue of domestic violence and how this impacted on Ms Z.
  4. Ms X made a referral to the Council about Mr Z’s behaviour towards Y in 2019. The Council carried out an assessment and decided Y was not at risk as she was not in contact with Mr Z. Y’s school made a referral about Y being sexually abused by another person. The Council carried out a child and family assessment during which Y disclosed she had witnessed sexual behaviour from Mr Z. The Council held a strategy meeting and concluded the concerns were substantiated but Y was not at risk from Mr Z as she was not in contact with him.
  5. In 2021 Ms X complained to the Council that it had not properly investigated her concerns about Mr Z abusing Y. The Council declined to investigate the complaint as the events were more than 12 months old. It said that the older the records are it is less likely they will be accessible and reliable. Staff may have left the authority and any lessons that the local authority might have learned from historical complaints diminish in time.
  6. The Council also said that in order to decide if it was appropriate to exercise discretion to investigate Ms X’s complaint as a late complaint, it had liaised with the team manager most recently involved in the case. It noted the team was offering ongoing support in relation to Ms X’s and Y’s current circumstances and had previously supported them through the child in need process.
  7. Ms X considers the Council failed to take her concerns seriously and wrongly focussed on her parenting rather than considering and understanding the risk Mr Z posed to her and Y. This has caused significant distress to them and meant Y did not receive the help and support she needed.

Analysis

  1. I have not come to any view on whether the Council has taken sufficient action to safeguard Y. This is because I do not consider the Council has given proper consideration to whether it should exercise its discretion to investigate Ms X’s complaint.
  2. I am mindful that it is more difficult to effectively investigate complaints due to the passage of time. But the Council’s reasoning for declining to investigate Ms X’s complaint do not stand up to scrutiny. The Council has provided its records so it is clear these are available. The records should be accurate so there is no reason why their reliability will diminish over time. The Council considered the current support being offered to Ms X and Y when deciding whether it should exercise discretion to consider Ms X’s complaints. But the ongoing support is not relevant to whether it should investigate Ms X’s complaints that it failed to safeguard Y from Mr Z. I therefore consider the Council failed to give proper consideration to whether it should have investigated Ms X’s complaints and this is fault.
  3. Ms X’s complaints concerned the Council’s child protection investigations and the Council has discretion over whether to refer such complaints to the statutory complaints procedure. But Ms X’s complaints also concerned the Council’s decision that Y was a child in need and the family support offered. The Council should have therefore considered investigating the complaint through the children’s services statutory complaints procedure and its failure to do so is fault. Had the Council given the appropriate consideration, it is likely it would have investigated the complaint. I say this as the guidance states the presumption is to investigate late complaints. As a result of the Council’s fault, Ms X missed the opportunity have her complaint considered through the statutory complaints procedure.
  4. We normally expect Councils to consider complaints through the statutory complaints procedure. I therefore consider the Council should investigate Ms X’s complaints through the children’s services statutory complaints procedure. It should commence the investigation at stage two of the procedure and consider appointing an independent investigator from outside the Council to give Ms X confidence in the process.

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Agreed Action

  1. That the Council investigates Ms X’s complaint thought the children’s services statutory complaints procedure. It should start the investigation at stage two and consider appointing an independent investigator from outside the Council to give Ms X confidence in the process. The Council should take this action within six weeks of my final decision.

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Final decision

  1. The Council is at fault as it did not properly consider if it should investigate Ms X’s late complaint and did not consider if it should investigate the complaint through the children’s services statutory complaints procedure. As a result Ms X missed the opportunity to have her complaint considered through the statutory complaints procedure. The Council has agreed to remedy Ms X’s injustice by now investigating Ms X’s complaint through the statutory complaints procedure which is an appropriate remedy. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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