Summary: Mrs X complained the Council failed to review a Special Guardianship Order for her grandchild, Y. This caused Mrs X distress as she considered a review may have led to Y having increased contact with her birth parents. The Council was at fault, but this did not lead to the injustice Mrs X has described. We have exercised discretion to investigate this complaint and it would have been reasonable to expect the Council to do the same. Mrs X has been caused frustration by the Council’s refusal to consider exercising discretion to investigate the complaint.

The complaint

1. Mrs X has a Special Guardianship Order (SGO) for her Granddaughter, Y. Mrs X complained the Council did not review the order in 2013. Mrs X says as a result, there has been no physical contact between Y and her parents. Mrs X also complained the Council has not investigated her complaint. This has caused her family stress and time and trouble pursuing this complaint.

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The Ombudsman’s role and powers

2. 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)
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. 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)
5. We have decided to exercise discretion and disapply the law about late a complaint as Mrs X only became aware the review was not carried out following a subject access request in 2022.

6. 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.

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How I considered this complaint

7. I read Mrs X’s complaint and spoke with her about it on the phone.
8. I considered information provided by Mrs X and the Council.
9. Mrs X and the Council had an opportunity to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Background information

10. Special Guardianship is an order made by the Family Court that places a child or young person to live with someone other than their parent(s) on a long-term basis. The person with whom a child is placed will become the child’s Special Guardian.
11. Regulation 17 of the Special Guardianship Regulations requires that where the local authority provides special guardianship support services for a person, other than financial support payable periodically, it must review the provision of such services:
• If any change in the person’s circumstances which may affect the provision of special guardianship support services comes to their notice
• At such stage in the implementation of the plan as they consider appropriate
• In any event, at least annually.
12. 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.
13. In February 2022 the Ombudsman issued practitioner guidance on the Children’s statutory complaints process.
14. The accompanying statutory guidance, ‘Getting the Best from Complaints’ states:
• The time limit can be extended at the local authority’s discretion if it is still possible to consider the representations effectively and efficiently. Local authorities may also wish to consider such complaints if it would be unreasonable to expect the complainant to have made the complaint earlier.

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What happened

15. The courts granted Mrs X a SGO for Y in 2011. The SGO agreement confirmed Y’s parents would have letterbox contact once per year with Y. The support plan created stated the Council should have reviewed the support plan in 2013. The Council did not review the support plan.
16. In 2020 Y’s sister, Z, was born. Mrs X is considered a foster carer for Z. When Z left the hospital, she went to live with Mrs X and arrangements for a SGO was commenced but Z returned to live with her parents in August 2021.
17. Mrs X submitted a subject access request (SAR) to the Council in February 2022. She complained the SGO for Z was different from the process completed for Y. Having received the response to the SAR, Mrs X discovered the Council should have reviewed the SGO support plan. Mrs X feels the Council not reviewing the SGO support plan meant the contact arrangements were also not reviewed. Mrs X believes this has resulted in Y not having the opportunity to build a relationship with her parents.
18. In March 2022, Mrs X submitted a formal complaint to the Council. The Council responded and said it will not investigate this matter as it is a historical complaint.
19. Mrs X is not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the complaint investigating fully and the Council to take responsibility for its actions.
20. In response to my enquiries the Council stated the letterbox contact between Y and her parents was agreed by the court and was restricted to once per year. The SGO support plan stated the plan should be reviewed after two years and every year after that unless Mrs X requested the plan was reviewed earlier than this.

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My findings

21. The Council did not review the SGO support plan after two years as specified in the support plan. This is fault.
22. Mrs X complains that if the Council had reviewed the SGO in 2013, the contact arrangements may have changed, and Y may now have a relationship with her parents. Based on the evidence available, we cannot establish a causal link between the actions of the Council and the injustice Mrs X claims. It would have been open to Y’s parents to go to court to have contact arrangements reviewed but they have chosen not to do so.
23. Mrs X complained the Council failed to investigate her complaint. We have exercised discretion to investigate this complaint as Mrs X only became aware of any potential fault after she submitted a SAR and received the response in 2022. Mrs X complained as soon as she discovered possible fault.
24. Statutory guidance, ‘Getting the Best from Complaints’ states local authorities may also wish to consider such complaints if it would be unreasonable to expect the complainant to have made the complaint earlier. The Council refused to investigate due to the time that had passed. It gave no indication it had considered using its discretion to investigate given Mrs X only recently became aware of the failure to review the order. She then pursued matters immediately.
25. It would have been reasonable to expect the Council to consider exercising its discretion to investigate the complaint. It’s refusal to do so is contrary to the guidance and Regulations. These confirm councils should consider investigating if it is not reasonable to expect the complainant to make the complaint within the time limit.
26. Failure to consider exercising discretion to investigate the complaint is fault and has caused Mrs X frustration in pursuing matters. Mrs X has now had independent oversight via our investigation which has helped remedy some of the injustice she has been caused.

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Agreed actions

27. To remedy the outstanding injustice caused to Mrs X, within one month of the date of the final decision, the Council has agreed to:
• Apologise to Mrs X for not considering exercising its discretion to investigate the complaint and for not reviewing the SGO support plan.
• Pay Mrs X £100 as an acknowledgement of the time and trouble this has caused her in pursuing this complaint.
• Remind staff of the need to consider exercising discretion when considering historic matters which fall within the remit of the statutory children’s complaints process.
28. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

29. I have completed my investigation. There was fault by the Council leading to an injustice. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman