Decision : Not upheld
Decision date : 28 Apr 2022
The Ombudsman's final decision:
Summary: Miss X complained the Council failed to adequately safeguard her niece Y and did not investigate information she provided indicating Y was at risk of harm. Miss X also complained the Council unfairly restricted access between Miss X’s family and Y. There was no fault with the Council’s actions.
- Miss X complained she provided the Council with information indicating her niece Y was at risk of harm and the Council failed to act on it.
- Miss X also complained the Council prevented her and her family from having access to Y.
- Miss X said the Council’s actions have led to emotional distress for her and her family.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. 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)
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
- If we are satisfied with an organisation’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 made enquiries of the Council and considered the information it provided, this included the complaint correspondence shared between the Council and Miss X, the Council’s chronology, and written response to our enquiries.
- I wrote to the Council and Miss X with my draft decision and considered Miss X’s comments before I made my final decision.
What I found
- The Children Act 1989 says the child’s needs and welfare are paramount and the needs and wishes of the child should be put first. This is so the child receives the support they need before a problem escalates. Safeguarding children is everyone’s responsibility.
- Councils have a duty to make enquiries where a child is considered to be suffering or likely to suffer significant harm. The enquiries must establish the child’s situation and to determine whether protective action is required (S.47 Children Act 1989). Significant harm covers the risk of physical, sexual, emotional abuse or neglect.
- Anyone who has concerns about a child’s welfare should make a referral to local authority children’s social care and should do so immediately if there is a concern the child is suffering significant harm or likely to do so. Practitioners who make a referral should always follow up their concerns if they are not satisfied with the response.
- When a council receives a referral about a child who may be at risk, it should make initial enquiries of agencies involved with the child and family and assess the information. The Council has a maximum timeframe of 45 working days to complete this assessment. An assessment might decide no further action is required, that the child is in need or that the child needs protection.
- Where the initial assessment shows a child is suffering or is likely to suffer significant harm, the council should hold a strategy discussion or meeting. The Council may decide to carry out enquiries in line with section 47 of the Children Act 1989. The Council may also decide to issue a Children in Need plan, which sets out how the child’s needs should be met.
Children’s statutory complaints procedure
- There is a statutory complaints procedure that is specifically for certain complaints about children’s social care.
- The Children Act 1989 Representations Procedure (England) 2006 sets out how the Council is expected to handle these types of complaints.
- There are criteria that must be met before a complaint can be investigated under this procedure. Upon receipt of a complaint, the complaints team will carry out a detailed assessment of the complaint to make sure it is eligible.
- If the Council is unable to address the complaint under the children's social care statutory complaints procedure, it will inform the complainant. If necessary the Council will provide the complainant with further advice, allocate to an alternative procedure or signpost them to the most appropriate organisation.
- Statutory guidance Getting The Best From Complaints states child protection complaints tend to be exempt from being investigated under the statutory complaints procedure, but this should not prevent councils from investigating the complaint under other procedures, such as the corporate complaints procedure. We expect councils to assess each complaint on its own merits.
- In June 2021 Miss X’s niece Y made a disclosure regarding her mother Ms D and a physical assault which had occurred. At the time Y was placed with her grandmother, Miss X’s mother.
- The Council completed a section 47 investigation in July 2021 and found that the concerns were substantiated. The Council issued a three-month Children in Need plan (CIN) for Y, which was intended to rebuild the relationship between Ms D and Y. Y returned to live with Ms D shortly after the plan was issued.
- Miss X complained to the Council on 26 July 2021 as she was unhappy Y was back in Ms D’s care. She said Y contacted her to advise she was unhappy with her living situation. Miss X said Y had experienced abuse in recent weeks and had been exposed to illegal substances whilst in Ms D’s care. She provided dates, text messages and pictures detailing incidents of abuse and asked the Council to begin safeguarding proceedings. She also asked the Council to explain why she and other members of her family were not allowed to have contact with Y.
- Miss X chased the Council for an update on 2 August 2021 when she did not receive a response.
- The Council wrote to Miss X on 9 August 2021 and confirmed the social work department did not have any concerns about Y’s safety. The Council said it would not investigate her complaint further because she did not hold parental responsibility for Y and referred her to the Ombudsman.
- Miss X’s MP wrote to the Council on 31 August 2021 and asked it to consider including Mrs X in any conversations regarding Y’s safety. The Council did not respond.
- The Council held a case discussion with the family social worker on 13 September 2021, who reported they had no concerns for Y and all interventions had been successful.
- In late September 2021, the Council met to discuss Y. The panel concluded the concerns which led to the CIN had not been properly addressed as Ms D had refused to engage with the social worker. The Council decided to close the case but advised it would reopen and escalate the case if further concerns around Ms D’s parenting were raised in future.
- Miss X brought her complaint to the Ombudsman because she was unhappy with the Council’s refusal to investigate her complaint.
- In response to our enquiries the Council has confirmed it assessed Miss X’s complaint and decided that as she does not hold parental responsibility for Y it would not investigate her complaint further. The Council stated that this does not mean it would refuse to investigate safeguarding concerns in future.
- With respect to the safeguarding concerns Miss X raised, the Council said a family support worker has visited Y and Ms D several times, Ms D has complied with the terms of the CIN. The Council confirmed it was satisfied Y was not at risk of harm.
- Miss X has complained the Council refused to investigate her complaint. The statutory guidance states councils cannot investigate most child protection complaints under the statutory children’s complaint procedure however it was open to the Council to assess the complaint and consider investigating it under other complaints procedures if necessary. The Council assessed Miss X’s complaint and decided not to investigate further because she did not have parental responsibility for Y and therefore insufficient interest in the matter. The Ombudsman cannot question the merits of a decision the Council has correctly made. The Council was aware of Miss X’s relation to Y and her disagreement with the Council’s actions. The Council decided not to investigate the complaint despite this information. The Council explained this to Miss X and confirmed it did not have any concerns for Y’s safety. This was a satisfactory action for the Council to take. There was no fault in the Council’s actions.
- Miss X has complained the Council did not act on her safeguarding concerns. The law requires the Council to take appropriate action to safeguard a child who is thought to be at risk of harm. Whilst the Council did not provide Miss X with details of the action taken following Miss X’s complaint, Council has stated Ms D co-operated with the family support worker visits and there have been no safeguarding concerns raised since. The Council has responded to the safeguarding concerns in line with what we would expect. There is no fault with the Council’s actions.
- Miss X has complained the Council has restricted her and her extended family’s access to Y. The Council does not hold joint parental responsibility for Y and therefore cannot make decisions regarding Y’s contact with her family. If Miss X remains unhappy with this, it is open to her to pursue this aspect of the complaint with the courts.
- There was no fault in the Council’s actions. I have completed the investigation.
Investigator's decision on behalf of the Ombudsman