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Birmingham City Council (22 001 215)

Category : Children's care services > Child protection

Decision : Closed after initial enquiries

Decision date : 13 Jun 2022

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate a complaint about how a Council considered a complaint about child protection under the statutory children’s complaints procedure. This is because there is insufficient evidence of fault and investigation by the Ombudsman is unlikely to achieve more.

The complaint

  1. Mr D complains about poor communication by Birmingham City Council (the Council) during child protection proceedings. He considers this contributed to delays with the hospital discharging his son, child A. Mr D is also unhappy with a decision by the Council to remove his older son, child B, from his care until the child protection proceedings had ended.
  2. Mr D also complains the Council refused to consider his written submission as evidence at stage 3 of the Statutory Children’s Complaints Procedure. He considers this was unfair and the Council may have reached a different conclusion had it considered his information.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
  • there is not enough evidence of fault to justify investigating, or
  • we could not add to any previous investigation by the organization.

(Local Government Act 1974, section 24A(6))

  1. 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)

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How I considered this complaint

  1. I considered information provided by Mr D and the Council.
  2. I considered the Ombudsman’s Assessment Code and relevant law and guidance.
  3. Mr D had the opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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My assessment

Background

  1. In August 2019 Mr D took child A to hospital because they could not move their arms. The hospital identified child A had a fracture. The cause of the injury was unknown, but clinical staff felt this injury was most likely caused by trauma. The hospital made a child protection referral to the Council. A strategy meeting was held the following day and the Council decided to carry out a child protection investigation.
  2. A further strategy meeting the next day agreed child A would remain in hospital until it had completed medical tests.
  3. The Council recorded it spoke to the clinical team who reported that because the injury to child A had started to heal, this may have predated their hospital attendance. The clinical staff said they did not have enough evidence to rule out non-accidental injury.
  4. The Council sought legal advice. This suggested because Mr D had another child, the Council should seek parental consent for both children to be accommodated under Section 20 of the Children Act 1989. If the parents did not agree, the Council’s legal advice considered it should apply to the Courts for an emergency protection order. A social worker discussed this with the parents and they agreed that a neighbour who had been helping them while child A was in hospital would look after child B.
  5. A strategy meeting on 9 September 2019 considered information Mr D provided. It decided on the balance of probabilities there was a lack of supervision with child B and they had possibly caused the injury to child A.
  6. Child A had a CT scan on 10 September. This showed no other injuries and the hospital discharged them home later that day.
  7. Mr D complained to the Council and the hospital NHS Trust about the events. The Council considered the complaint under the statutory children’s complaint procedure. Delays in this process have already been considered by the LGSCO under a previous complaint from Mr D.
  8. The Council advised Mr D on 26 May 2021 he could send a written statement for the stage 3 Panel meeting so Panel could consider this alongside other Panel papers. Mr D sent an email 30-minutes before the Panel meeting was due to start (on 11 June 2021).
  9. The Council did not accept the written submission because there was not enough time for Panel to consider this before the meeting. However, the Panel minutes record that the Chair met with Mr D before the meeting started to explain this. The Chair also confirmed Mr D could still discuss his concerns during the meeting and noted the written submission he had prepared may help him with this.

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Analysis

  1. 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.
  2. The Council completed all three stages of the statutory children’s complaints procedure. As noted above, there were delays with this but LGSCO has already considered this.
  3. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed.
  4. Following local resolution (stage 1) a stage 2 investigation was carried out by an independent officer and was overseen by an independent person. This is in line with the statutory complaints procedure. The independent investigator considered information from Mr D and relevant health and social care professionals. This included interviewing staff, reviewing relevant records of events and considering the relevant legislation.
  5. The evidence indicates the stage 2 investigation was independent, thorough and considered relevant factual information. The independent report set this out and provided a clear explanation of the findings.
  6. The Council considered Mr D’s objections to the stage 2 report at a Panel meeting (stage 3) but these did not change its view. Mr D was unhappy the Panel did not accept his written submission.
  7. The statutory guidance says Panel papers should be sent to panellists and other attendees as soon as the Chair has agreed these. This should be no later than 10 working days before the date of the Panel. This includes any comments the complainant has sent. For any written material submitted for consideration by the Panel outside these timescales, it is usually at the Chair’s discretion whether it is accepted.
  8. Mr D’s submission to Panel was outside the timeframe set out in the statutory complaints guidance. However, the Council had not told him there was a deadline and he therefore did not know he needed to send his submission 10 working days before the Panel. That said, it seems reasonable that any written submission a complainant wants considering should be sent to Panel sooner than 30 minutes before the meeting is due to start.
  9. The Chair has the discretion to accept any evidence outside of the timescales set out in the statutory guidance. I can see the Chair considered this. Although they did not accept Mr D’s written submission, he was given the opportunity to discuss his concerns and explain what he was unhappy with during the meeting.
  10. I consider the discussion at the Panel meeting effectively addresses the potential injustice to Mr D in this regard. The Council has also accepted the Panel’s recommendation to include a clear deadline for written submissions in future. This seems a reasonable and proportionate outcome.
  11. I appreciate Mr D does not agree with the findings, but I have seen no indication the process was flawed. There is insufficient evidence of fault in the Council’s decision-making process and I do not consider the Ombudsman would achieve more from investigating the events complained about.

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Final decision

  1. Subject to any comments Mr D might make, my view is we should not investigate this complaint. This is because the complaints have been considered through the statutory complaints procedure and I have seen no indication this investigation process was flawed. While there was a lack of clarity around the timings for a written submission to Panel and Mr D still had the opportunity to discuss his concerns. The Council has also taken action to clarify deadlines in future. The Ombudsman could not therefore achieve more by investigating.

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Investigator's decision on behalf of the Ombudsman

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