Summary: Ms X complains about the way the Council dealt with the care of her children. The Council was at fault for the Investigating Officer failing to consider information when they said they would, failing to clarify at stage three of the complaint procedure its view on whether it could investigate human rights matters, delaying in completing the complaint procedure and delaying in completing some of the agreed remedies. This caused Ms X and her children distress, frustration and uncertainty. The Council has agreed to apologise, make a payment to Ms X and the children, and send us an action plan on how it will improve complaint handling times.

The complaint

1. Ms X complains on behalf of herself and her children about the way the Council dealt with the care of the children. She says the Council:
1. failed to protect the children when they were in the care of the Council;
2. allowed the children to be abused by foster carers;
3. misused section 20 of the Children Act 1989 and unlawfully accommodated the children against her wishes and without a court order or police protection powers;
4. reported false information in meetings;
5. failed to include parents in safeguarding enquiries;
6. breached her and the children’s human rights; and
7. failed to share its decisions with her.
2. Ms X says this has caused her children to mistrust professionals. Ms X also said she has lost her career because of the actions of the Council.

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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 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)
4. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. When we find fault, we can recommend remedies for significant personal injustice, or to prevent future injustice, caused by that fault. We look at organisational fault, not individual professional competence. Decisions about individual’s fitness to practise or work are for the organisations concerned, and for professional regulators, not the Ombudsman. (Local Government Act 1974, s26(1) and s26A(1) as amended).
7. The Ombudsman cannot investigate whether social workers are meeting their professional standards of conduct. Complaints of this nature should be referred to the social workers’ professional body, Social Work England.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legislation and guidance

Statutory complaints procedures - the three-stage process

10. 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. We also published practitioner guidance on the procedures, setting out our expectations.
11. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
12. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
13. Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
14. The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days where required.
15. 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 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.

No reinvestigation if process complete and not flawed

16. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
17. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.

HRA – Human Rights Act

18. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
19. Not all rights operate in the same way. Instead, they break down into three separate categories:

• Absolute rights: those which cannot be interfered with under any circumstances.
• Limited rights: those that can be interfered with in certain circumstances; and
• Qualified rights: those rights where interference may be justified in order to protect the rights of others or wider public interest. Note that any interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.

20. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts.
21. In practical terms, councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.

Section 20 (s20)

22. Section 20 of the Children Act 1989 says councils shall provide accommodation to any child in need within their area who needs it, because:

• there is nobody with parental responsibility to care for them;
• they have been lost or abandoned; or
• the person who has been caring for them being prevented from providing suitable accommodation or care.

23. Councils cannot accommodate a child under section 20 if a person holding parental responsibility objects and is willing and able to care for the child or arrange care for the child.

What happened?

The Council’s investigation into Ms X’s complaint

24. Ms X complained to the Council about the way it had dealt with the care of her children in August 2023. The Council responded to Ms X’s stage one complaint towards the end of September 2023.
25. The following day, Ms X asked the Council to escalate her complaint to stage two of the Children Act complaint procedure. The Council accepted this request and appointed an IO and IP quickly, who met with Ms X shortly after.
26. There was a delay from the end of October to the beginning of January in agreeing the statement of complaint because Ms X was unwell and was awaiting the delivery of a new laptop.
27. In March 2024, Ms X emailed the IO records from the children’s school that she wanted to be included in the investigation. The IO confirmed receipt of these and said he would consider these.
28. The Council completed stage two mid-July 2024. Ms X was unhappy with the outcome of this and asked the Council to complete stage three of the procedure. In her stage three escalation letter, Ms X said the Council had not addressed the human rights part of her complaint.
29. I have read the notes from the stage three panel meeting. I note that Ms X raised that the IO failed to consider the records from the children’s school in his investigation, despite telling her he would include this information. During the meeting, the IO said he had no recollection of agreeing to consider this information, and apologised for any misunderstanding about this matter.
30. The Council completed stage three mid-December 2024. It upheld Ms X’s complaint points that it had:

• failed to investigate and assess the risk of harm presented to the children;
• accommodated the children against Ms X’s wishes and without a court order or police protection powers; and
• failed to include parents in safeguarding enquiries.

31. The Council also partially upheld that it failed to share some decisions with Ms X.
32. The Council did not uphold Ms X’s complaint that it allowed the children to be abused while in the care of foster carers. It also did not uphold that it reported false information in meetings but accepted it had inaccurately recorded some case notes related to this.

The Council’s offers to Ms X and recommendations

33. Following stage two and three of the complaint procedure. The Council made 22 recommendations which included service improvements and personal remedies to Ms X and the children. This included:
• an apology;
• a symbolic payment of £500 to Ms X and each of the children for the distress caused by its failings (total £1500);
• offer Ms X and the children a manager to discuss the information held about them by the Council;
• staff training;
• adding a summary of the complaint on the children’s social care records; and
• developing a leaflet to explain s20 to parents.

Response to my enquiries

34. The Council told me there had been delays to the complaint procedure which was caused by reduced staffing levels within the complaints team and continuing enquiries about the care and safety of the children and family.

Findings

The procedure

35. If a complaint has already been through the second stage of the Children Act complaints procedure, this means they have already had access to an independent investigation. Consequently, we will not normally re-investigate such a complaint unless we have reason to believe the previous investigation was flawed.
36. I have considered the documents from Ms X’s complaint, and I note that:
• All parts of the complaint, apart from one relating to human rights was considered and addressed by the Council.
• The independent investigation report refers to relevant procedure and case records. These case records support the investigator’s findings.
• The Council considered Ms X’s desired outcomes and explained its view about these.
• Ms X did not complain directly about any issues with the statutory complaint procedure.
37. Because of this, it is unlikely I would be able to add anything significant to what the Council has already said. If I were to reinvestigate the complaint, it is also unlikely that this would lead to a different outcome for Ms X. So, a reinvestigation would be of no benefit to her.
38. I understand Ms X is unhappy that the IO failed to consider the information she provided from the children’s school. There is no duty on an IO to consider records from other agencies or organisations, including a school. I have read the panel report and the IO did gain the views of the school by considering its contribution to referrals and meetings that it had participated in related to the children. I am satisfied the decisions within the report were based on sound evidence and so there is no fault in the IO in failing to consider this information. But, there is fault in the IO telling Ms X he would consider this and then failing to do so. This caused Ms X raised expectation and uncertainty for which the Council should apologise for.
39. But, I note that Ms X said in her stage three escalation that the Council failed to deal with the human rights part of her complaint at stage two. However, at stage two, the IO explained this was not something they could investigate, because they were not qualified to decide if any rights had been breached.
40. This showed the IO did consider the human rights element but decided it was outside their powers to investigate. This was a decision the IO and the Council was entitled to make and there was no fault in doing so.
41. However, I note that when Ms X raised the same point again at stage three, there was no evidence the Council addressed it at all. The Council should have clarified at stage three its view on whether it could investigate human rights matters. Not doing so was fault.
42. Even so, the injustice this caused to Ms X and the children is limited to uncertainty only. Even if the Council had explained this properly, there is a good chance that it would still have said it could not decide on possible human rights breaches. Therefore, it is unlikely that the final outcome for Ms X and the children would have changed.
43. If Ms X still feels the Council breached the Human Rights Act in relation to her case, she has the option of seeking legal advice.

Timeframes

44. While I am happy the remainder of the investigation was completed in line with guidance, I am concerned about the time it took the Council to complete the procedure. I note the Council took 10 months to complete stage two. Although I acknowledge that Ms X contributed to around two months of this delay, we expect a Council to complete stage two within 65 working days.
45. There were also delays with stage three, which took the Council around five months to complete. We expect a council to complete stage three within 50 working days. These considerable delays were fault which caused Ms X and the children uncertainty and frustration. I will recommend remedies for this.

Remedies

46. The Ombudsman’s remedies guidance outlines that we can recommend small, symbolic payments which recognise an injustice. The Council initially offered one payment of £500 at stage two which it increased to 3 payments of £500 at stage three. The Council has already made this payment to Ms X and each child individually. This financial remedy is in line with our guidance, so I have no grounds to recommend the Council increase this payment. But, I do note that it took the Council six months to make these payments. This significant delay was fault which caused Ms X and the children further frustration.
47. The Council’s remaining 21 proposed service improvements and personal remedies properly recognised the injustice it had caused.
48. I welcome that the Council did offer Ms X and the children a meeting to discuss information held about the children by the Council. I note that this meeting has not as yet taken place. I will ask the Council to consider offering to hold this meeting with Ms X and the children again.
49. I also note there was a delay of around four months in placing notes on the children’s social care files about Ms X’s view about inaccuracies of records. Although the notes remedied the injustice caused, this delay was fault, which caused Ms X and the children further distress. If Ms X remains unhappy with the Council’s amendments to social care files, she has a right of rectification under the Data Protection Act. If she is unhappy with how the Council deals with any requests, she can raise this with the Information Commissioner.
50. In response to enquiries, the Council failed to provide evidence that it had developed a form for parents about s20 and that it had reminded social care staff of the importance of accurate recording. I will ask the Council to provide evidence of these completed remedies.
51. Ms X asked the Ombudsman to consider asking the Council to complete an internal investigation and for disciplinary action to be taken for staff members involved. Decisions about individual’s fitness to practise or work are for the organisations concerned, and for professional regulators, such as Social Work England, not the Ombudsman. As the Council told Ms X in the investigation, disciplinary procedures are separate to the Children Act complaint procedure and so this is not something we can recommend.

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Action

52. Within four weeks of our final decision, the Council will:

• apologise to Ms X for the frustration, uncertainty and distress caused by its faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology;
• make a separate payment of £150 to Ms X and each child (totaling £450) to remedy the injustice caused by the Council’s delay in completing the procedure, failing to clarify at stage three its view on whether it could investigate human rights matters and its delay in completing some of the remedies;
• offer a meeting to Ms X and the children to discuss the information that the Council holds about the children. This should be chaired by a manager that the Council considers to be appropriate;
• provide evidence that it has published two information leaflets to provide information on the care process; and
• provide us with an action plan on how it will improve complaint handling times.

53. The Council should provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman