Summary: Miss F complained that the Council failed to provide her family with children’s social care support and had refused to accept her complaint about this. We found fault in the Council’s decision not to investigate and respond to the complaint under the statutory children’s complaints process. The Council has now agreed to do so.

The complaint

1. Miss F complained that the Council failed to provide her family with support, has unreasonably commenced the public law outline procedure and has refused to accept her complaint about its actions. As a result, her family has not had the support it needed and she cannot have her concerns addressed.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

5. I have investigated how the Council dealt with Miss F’s complaint. I have not investigated the substantive issues she has complained to the Council about.

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How I considered this complaint

6. I spoke to Miss F about her complaint and considered the Council’s response to her complaint and:
• The Children Act Representations Procedure (England) Regulations 2006 (“the Regulations”)
• Getting the best from complaints, Statutory guidance for local authorities on children’s services complaints procedures 2006 (“the Guidance”)
7. Miss F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

The statutory children’s complaints process

8. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. This includes decisions by the local authority to initiate care and supervision orders and the process can consider the quality of court reports.
9. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two.
10. At stage two, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
11. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.
12. 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. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

Consent of the young person

13. The Guidance says that a person with parental responsibility may complain under the statutory complaints’ procedure in their own right; they therefore do not need the young person’s consent to make a complaint.
14. Councils will need to process a young person’s personal data in order to investigate a complaint relating to support provided to them. But the council does not require the young person’s consent to do this. The council can process the person’s data under Article 6.1(c) of the UK General Data Protection Regulation (UK GDPR): “processing is necessary for compliance with a legal obligation to which the controller is subject”. This is because the council has a legal obligation to investigate complaints under the statutory complaint’s procedure. This ability to process data without consent extends to persons appointed by the Council to investigate the complaint.
15. Our 2021 guidance for practitioners on the statutory children’s complaint process says that we would be unlikely to find fault with a council for informing the young person about the complaint or seeking consent from them for their data to be accessed as part of a complaint investigation, as long as this did not lead to unnecessary delays in the process. We would also expect a council to consider if seeking consent or informing the child or young person was appropriate, taking into account their wellbeing. If a young person does not consent, the council may still investigate.

Early referrals to the Ombudsman

16. The Ombudsman would normally expect a council and complainant to follow the full complaints procedure. The Guidance sets out the circumstances in which a complaint can be referred to the Ombudsman without completing all three stages. This can only happen when the stage two investigation is robust with all complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.
17. If both parties agree and the complaint has been upheld, the Ombudsman can deal with the complaint without the third stage. The Guidance also says that someone can complain to the Ombudsman at any time. The Ombudsman might exercise discretion to investigate in certain but rare circumstances.
18. The Ombudsman has published a focus report highlighting common failings in the way councils deal with complaints that are within the remit of the statutory children’s procedure. The practitioner guidance sets out our expectations on how statutory complaints should be handled and managed. It clarified that the Ombudsman would be unlikely to accept complaints brought early unless the early referral criteria had been met.

Public Law Outline Process

19. The Public Law Outline (PLO) process takes place when a local authority is concerned about a child’s wellbeing and may consider making an application to the Court for care proceedings unless positive steps are taken to address their concerns.
20. If a council wishes to start the PLO process it will first provide parents with a “letter before proceedings” outlining its concerns and proposed action to address the concerns. It will also arrange a PLO meeting. If an agreement about the action needed is implemented, a council may then decide whether the PLO process needs to continue.
21. The Ombudsman 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) However, we can investigate complaints about whether a council acted with fault upstream prior to starting court proceedings, without which the court proceedings could potentially have been avoided. The PLO process is not the start or conduct of court proceedings. We are therefore able to consider complaints about it.

What happened

22. Miss F’s son, J, and their home had been attacked and as a result J went to live with a relative and stopped attending school. In 2023 Miss F agreed for J to be accommodated by the Council under section 20 of the Children Act 1989.
23. In December 2023, the Council started the PLO process. Miss F complained about this on 29 December 2023 as she considered it was unjustified. She also complained that the Council had failed to support J when he had been attacked and that he was now out of school with no education. After the PLO meeting, Miss F made a further complaint on 5 January 2024 about the meeting.
24. On 8 January 2024 the Council’s complaints team advised Miss F that J’s social worker would need to discuss the complaint with him. Miss F queried this. The Council responded that J’s consent was needed to share his personal data with Miss F as he was almost 16 years old.
25. Miss F agreed that the Council could speak to J but said that either she or J’s foster carer should be in the meeting. The Council then advised the foster carer not to communicate with Miss F.
26. The Council emailed Miss F on 15 January 2024 rejecting her complaint. It said:
• Miss F’s “legal concerns over the operation of the PLO process and the signing of the s.20 agreement” were issues she should seek legal advice on and were not viable for the complaints process.
• Miss F’s complaint about the Council’s support for J would require the Council to “refer to information on J’s social care file that by law belongs to him.” The Council would therefore need to seek J’s informed consent before disclosing his personal information and that “a [complaint] response to you would necessitate disclosing his personal information to you.”
• The Council’s professional opinion was that it would not be in J’s interests for his consent to be sought.
27. Miss F came to the Ombudsman.

My findings

28. Miss F’s complaint is about children’s social care support provided to J under Part 3 of the Children’s Act 1989, the Council’s actions when considering care proceedings and his education. I am satisfied the matter complained about may be considered through the statutory children’s complaints process and that it does not meet the criteria of an early referral to the Ombudsman.
29. Having reviewed the relevant data protection laws and guidance I am satisfied the Council does not need J’s consent to investigate the complaint made by Miss F. Consent is one of the lawful bases the Council can rely on to process personal data, but it is not the most appropriate here as it risks allowing the Council to sidestep its statutory responsibility to investigate complaints. It is not for the young person to determine whether the Council should or should not comply with its legal obligation to investigate.
30. That is not to say the Council was wrong to consider whether it was appropriate to discuss the complaint with J or to seek his consent. And the Council is entitled to reach a view that this would not be in his best interest.
31. Nor does it mean the Council may share J’s personal data with Miss F. The Council will need to decide what information it can and cannot share and document its reasons.
32. But this does not prevent the Council from investigating the complaint. I therefore find it was fault for the Council not to deal with the complaint under stage one of the statutory process. This has caused Miss F an injustice as her complaint has not been properly considered.

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Agreed action

33. Within one month of my final decision the Council has agreed to respond to Miss F’s complaint under stage one of the statutory children’s complaints procedure.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman