Decision : Not upheld
Decision date : 25 Nov 2021
The Ombudsman's final decision:
Summary: Mr B complains the Council’s children’s service department is not properly involving him and keeping him informed about actions relating to his children. We have discontinued investigation because the Council is currently investigating under Stage two of the statutory complaints procedure as defined by the Children’s Act 1989.
- The complainant, who I will call Mr B, says the Council has failed to keep him updated about issues with his children, despite his parental responsibility. Mr B has three children who do not live with him; he has telephone contact with them.
- Following a Subject Access Request Mr B learned the children had disclosed information to the Council that they were suffering racial, physical, mental, and verbal abuse within their household. Mr B says he asked the Council what it had done in response and got no reply. Mr B says there has been occasions where the Council has delayed telling him about key issues in his children’s lives.
- Mr B worries the Council is not doing its job properly and that his children are suffering because of this. This obviously concerns and upsets Mr B.
- Mr B has concerns about the accuracy of data held by the Council, which the Information Commissioner’s Office (ICO) is investigating.
The Ombudsman’s role and powers
- 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint or it would be reasonable for the person to ask for a council review or appeal. (Local Government Act 1974, section 24A(6), as amended)
- We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
- The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
- The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
- 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 considered information provided by Mr B and spoke with him. I considered information from the Council. I considered the statutory complaints procedure for complaints about Children’s Services, and associated guidance.
- Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
The statutory complaints procedure for complaints about Children’s Services
- The Children’s Act 1989 sets out the complaint procedure where a child or young person is unhappy with the actions of Council’s children’s services. This includes complaints made on behalf of a child or young person. Underpinning the procedure are Regulations and guidance contained in a publication entitled “Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others”.
- The statutory procedure has three stages. Stage one gives a council chance to resolve a complaint informally. If it cannot do this, then at stage two it must appoint an Investigating Officer (IO) and an Independent Person (IP), who oversees the investigation. The IO produces a report with their findings and the IP produces a report commenting on the investigation. The Council must then respond to that.
- If a complainant remains dissatisfied, they can then ask for a stage three review. A panel made up of three people independent of the Council hears the review. The panel will consider the grounds for dissatisfaction with the outcome of the stage two investigation and may recommend the Council take further action.
- Those named as people who may complain in the guidance can make complaints in their own right; there is no requirement for the complaint to be made on behalf of a child, or to seek the child’s consent. The guidance also makes it clear that councils can extend the procedure to cover individuals and circumstances not covered by the regulations. Once a council has accepted a statutory complaint, we would usually expect it to follow the process through all three stages, other than the very specific circumstances in which an early referral can be made to the Ombudsman after stage two.
- The guidance allows councils to decide not to investigate a complaint if it would prejudice a concurrent investigation, including court proceedings. However, the guidance also allows a complainant to resubmit their complaint to the council once the concurrent investigation has ended (and for up to one year afterwards). Before deciding to end an investigation already in progress, councils should consider if it is possible to investigate some or all of the complaint without prejudicing any other investigation. Detailed records should be kept of any decision to end an investigation. Councils should tell complainants in writing the reason for the decision to end an investigation and the concurrent investigation at risk of being prejudiced. Councils should also tell complainants about their right to resubmit the complaint.
- We can decide not to investigate a complaint because another body, such as the court, is better placed to consider it. There is no such limit placed on councils. Therefore, councils should be open to considering complaints even when there have been court proceedings. Councils can also investigate matters which we do not have jurisdiction to consider. For example, the guidance says councils can investigate reports presented in court (except for section 7 and section 37 reports) under the statutory complaints procedure, which we cannot. If the council investigates and upholds the complaint, it should tell the complainant what it will do about the court action.
- Mr B complained to the Council, who responded. The Council accepted it had not added the children’s’ concerns about racism and previous physical harm to the safety plan which was part of their Child in Need plan. The Council also accepted it had taken seven days before it told Mr B about a joint visit it had with the Police, so had not properly engaged him in the process. The Council apologised and said it would take action to improve its service.
- Mr B complained to the Ombudsman as he remains concerned the Council is shutting him out of what is happening with his children. The Council reviewed the case and decided some elements of the complaint met the criteria for the statutory complaints procedure. The Council has appointed an IO and IP to complete Stage two of that process.
- Mr B is involved in court proceedings about his access arrangements with his children. Mr B says there is a court order in place so he should be getting information about his children.
- Mr B tells me he has a current complaint with the ICO about the accuracy of the information the Council holds.
- I explained above some of the limited circumstances where we might discontinue an investigation having accepted a case for such. I have decided on this occasion it is right for us to use this discretionary power. I have done so because there is a presumption in law that a complaint about Children’s Services will usually be pursued using the Children’s Act complaint procedure described above. We would usually expect that procedure to complete before coming to a view on whether we should uphold someone’s complaint.
- Although Mr B would prefer the Ombudsman to investigate now, that is not a good reason to exercise discretion and ‘skip’ the statutory process. The Council should complete the process by law, and despite what Mr B thinks, the Council has not said it will not do so.
- As explained in paragraph 17, the Council may be able to investigate some issues through the statutory process which the Ombudsman cannot.
- The Children’s Act complaint procedure should provide for a thorough investigation of Mr B’s concerns; an independent perspective is inbuilt in the process and there is requirement for close co-operation with the complainant over such matters as agreeing the terms of the complaint; this should provide Mr B with reassurance the process is likely to offer an equivalent service to that of this office.
- If dissatisfied at the end of the statutory process, Mr B will still have the right to ask us to investigate again; he therefore has more opportunity to achieve a satisfactory outcome to his complaint.
- I consider these factors are persuasive in deciding that I should use my discretion to refer this complaint back to the Council. This is on the understanding the Stage two investigation of Mr B’s complaint under the statutory procedure is already underway.
- The Ombudsman cannot investigate any issues that have been or will be heard by the Court and cannot investigate any concerns the ICO is investigating. If Mr B thinks he is not getting information as defined by a court order, he could raise that concern in court.
- I have discontinued my investigation on the basis the Council will complete the statutory complaints procedure in accordance with the Children’s Act 1989.
Investigator's decision on behalf of the Ombudsman