Summary: Mr X complained about the actions of the Council during a child protection investigation and assessment. Part of his complaint was upheld during the Council’s statutory complaints procedure. We have not found fault with how the Council considered his complaint. We found no further fault in its handling of the child protection investigation and are satisfied the Council’s remedy was proportionate and in line with our Remedies Guidance.

The complaint

1. Mr X complains about how the Council carried out child protection enquiries following a serious incident with his neighbour. He also complains about how the Council dealt with his complaint about this matter.
2. Mr X says this caused significant distress him and his wife, and the Council’s remedial action was inadequate.

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The Ombudsman’s role and powers

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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If someone has a complaint about data protection, we normally expect them to refer this to the Information Commissioner. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
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.
7. 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)

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How I considered this complaint

8. I considered the information provided by Mr X, including the documentation from the statutory complaints procedure investigation.
9. Mr X and the Council now had the opportunity to comment on this draft decision. I considered any comments received before making my final decision.

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What I found

Relevant law and guidance

Councils’ duties towards children

10. Local authorities have a duty to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child’s needs. (Children Act 1989, section 17)
11. Local authorities 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)

The statutory complaints process

12. The law sets out a three-stage procedure (the Procedure) for councils to follow when looking at complaints about Children’s Services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
13. The timescales in working days for the Procedure are:

• 10 days at stage one (with a further 10 days for more complex complaints or additional time if an advocate is required);
• 25 days at stage two (with maximum extension to 65 days);
• 20 days for the complainant to request a Review Panel;
• 30 days to meet and hold the Review Panel at stage three;
• 5 days for the Panel to issue its findings; and
• 15 days for the council to respond to the findings.

(Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).

What happened

14. This is a summary of key events and is not meant to describe everything that happened.
15. In January 2021, Mr X was seriously assaulted by his neighbour (Mr D) near his home. Mr X had previously been threatened by Mr D and reported the matter to the police. He also complained about anti-social behaviour and noise nuisance to the Council.
16. During the assault, Mrs X’s wife, Mrs X, intervened to try and help her husband. Mrs X was pregnant.
17. Shortly afterwards, Mr and Mrs X were contacted by a social worker (Officer J). Officer J visited Mrs and Mrs X at home to make enquiries about the incident. Mr X had assumed it was to check on their welfare. He later found out Officer J was concerned Mrs X had failed to take account of the safety of her unborn child when she intervened in the assault. Officer J asked about marks on her face that Mrs X found offensive.
18. Officer J completed an assessment. Dissatisfied with the way the matter had been handled and the content of Officer J’s report, Mr X complained to the Council.
19. The complaint was considered under the Procedure. This took approximately 14 months to complete. Several areas of fault were identified:

• There was a lack of sensitivity from Officer J during her enquiries.
• There was some evidence of poor case recording.
• There was miscommunication and lack of clarity on the process.
• There was confusion over whether verbal consent had been given to contact other agencies.
• The stated urgency of the initial visit was unnecessary.

20. Based on these findings, the Council accepted its actions fell below the expected standards. To acknowledge this the Council:

• apologised;
• paid Mr X £350 (£200 for distress and £150 to acknowledge the time taken to consider his complaint); and
• included Mr X’s objection to the report on the case record. It did not agree to delete the case record entirely as Mr X had wanted.

21. It also agreed to take action to address the shortcomings highlighted by Mr X’s complaint.
22. The Council did not uphold Mr X’s complaint about whether the Council should have taken any action at all because the initial referral had been malicious. The Council explained there was no evidence to support this rationale and had a duty to make enquiries when they receive information concerning the welfare of an unborn child.
23. Dissatisfied with this outcome, Mr X brought his complaint to the Ombudsman. He said:

• the complaints procedure failed to consider and acknowledge the child protection investigation had been based on a malicious referral;
• stage one and stage two of the complaints procedure did not address his specific complaint an unnecessary and incorrect comments about Mrs X’s nationality contained in Officer J’s assessment;
• the Council should have deleted the entire case record; and
• the financial remedy failed to properly acknowledge this significant distress to both him and Mrs X caused by the Council’s child protection investigation and delay in its complaint handling.

Analysis

24. When a case has been considered via the Procedure, we generally do not reinvestigate the substantive issues. The Procedure is designed to provide significant independence and detailed analysis of concerns raised. This means reinvestigation is neither necessary nor warranted unless there are serious and fundamental flaws in the way the case was investigated.
25. With this context in mind, my investigation has focused on Mr X’s specific areas of concern about the Procedure (set out at paragraph 23 above).

The Procedure failed to consider and acknowledge the child protection investigation had been based on a malicious referral

26. The stage two investigation report contains a chronology of events and refers the relevant case records. This included details of Officer J’s initial contact and reasons for the referral. I have seen no evidence to suggest the Council did not follow the correct process, aside from the areas of fault identified during the complaints process.  

I understand that Mr X feels aggrieved by the Council’s decision to make child protection enquiries and carry out an assessment as he feels it was unjustified, but it is not for our service to question decisions that have been made properly. It received a referral from the police and had a duty to carry out enquiries. It is not for the Ombudsman to question how the Council did so. I have not found the Council to have acted with fault.

The financial remedy failed to properly acknowledge this significant distress to both him and Mrs X caused by the Council’s child protection investigation and delay in its complaint handling

27. Paragraph 13 (above) sets out the relevant timescales for dealing with Mr X’s complaint. Non-complex cases should be completed within 95 days (170 days where the complaint is complex). Mr X made his original complaint in May 2021 and the final, stage three response was sent in late July 2022. This is significantly more than the law expects. The Council has explained that part of the delay was due to unavailability of key witnesses and the Council’s attempts to contact them.
28. This delay was fault and has already been accepted by the Council at stage three of the Procedure.
29. Where there has been fault during the complaint process, as was the case here, the Ombudsman’s Guidance on Remedies suggests making a payment of between £100 and £300 to the complainant.
30. The Council has already offered £150.
31. I consider this to be an appropriate amount to remedy the injustice caused by the poor complaint and in in line with what we would normally recommend in these circumstances.
32. It is clear from Mr X’s complaint to both the Council and the Ombudsman that both her and Mrs X suffered significant distress as a result of the child protection enquiries, particularly in the contact of being the victim of a brutal attack by Mr D and Mrs X’s pregnancy. Mr X says the Council’s apology and financial remedy has failed to recognise this.
33. As I have explained above, I have not found fault with the Council’s decision that it was justified in carrying out its child protection enquiries. For this reason, I can only consider the distress that was a direct result of fault by the Council. As set out in paragraph 19 above, the accepted fault was around some areas of poor communication and case recording. I must consider whether the Council’s remedy payment of £200 is adequate to reflect this specifically, and not the distress caused by the investigation happening in the first place.
34. The Ombudsman’s Guidance on Remedies says that councils are expected to treat people fairly and with respect and not expose the public to unnecessary distress, harm or risk as a result of their actions. Such injustice cannot generally be remedied by a payment, so we usually seek a symbolic amount to acknowledge the fault on the complainant. A remedy payment for distress (which covers undue significant stress, inconvenience and frustration) is often a modest sum between £100 and £300.
35. With this in mind, I consider the Council’s payment of £200 to be an appropriate remedy to reflect the specific areas of fault identified during the complaints process.

The Council should have deleted the entire case record

36. During the Procedure, the Council considered Mr X’s request to delete the case record but decided not to do so. Instead, it agreed to include details of Mr X’s disagreement with the investigation and statements contained in the assessment.
37. This was a decision the Council was entitled to make. In the absence of any fault in the way this decision was reached, we cannot question it the decision itself or ask the Council to delete its record.
38. If Mr X remains dissatisfied, he can ask the Information Commissioner’s Office (ICO) to decide if the Council has met its Data Protection duties. The Council has duties under the data protection legislation to only hold accurate information, and The Information Commissioner’s Office is best placed to deal with this matter and has the power to achieve the outcome sought by Mr X.

Stage one and stage two of the Procedure did not address his specific complaint and unnecessary and incorrect comments about Mrs X’s nationality contained in Officer J’s assessment

39. Mr X says the Council was wrong to include reference to Mrs X’s nationality within its assessment. The information was both factually incorrect and irrelevant. In its stage one response, the Council accepted the information was inaccurate and agreed to amend the assessment. The matter was not considered further. I have noted it was not included in the statement of complaint that defined the scope of the stage two investigation. The statement of complaint was agreed by Mr X. Because he was given the opportunity to include this and did not do so, I do not find fault with the Council for not considering this aspect of his complaint further, particularly as it was addressed at stage one. There was no additional fault here.

Conclusion

Overall, I am satisfied the Council carried out a thorough, robust, independent review of Mr X’s complaint. It offered an appropriate remedy and identified areas of service improvement. In the absence of further fault, the Ombudsman cannot add anything further to this outcome.

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Final decision

40. I have upheld Mr X’s complaint on the basis fault was identified during the statutory complaints procedure. I have not identified any further fault and I am satisfied the Council has already offered an appropriate remedy. For this reason, I have not made further recommendations to the Council. On this basis, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman