Summary: Mr and Mrs X complained the Council refused to investigate their complaint about matters related to the safeguarding of their grandchildren. The Council was at fault for not considering relevant matters in its decision to refuse Mr and Mrs X’s complaint. It will apologise to Mr and Mrs X for the avoidable frustration caused by its fault, re-take its decision in line with the statutory guidance and take steps to prevent recurrence of the same fault.

The complaint

1. Mrs X complained on behalf of herself and Mr X. She complained the Council refused to investigate their complaint about matters related to the safeguarding of their young grandchildren under the children’s statutory complaints procedure. She complained it missed opportunities to take appropriate and prompt action to prevent further harm from happening to their grandchildren.
2. Mrs X said, as a result, they were caused frustration, and both they and their grandchildren were caused trauma.

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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(1), 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).

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What I have and have not investigated

6. I have not investigated the substantive matters that led to Mrs X complaining to the Council. We will not look at the substantive matter of a complaint before the Council has considered it through its complaints’ procedure.

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How I considered this complaint

7. I spoke to Mrs X and considered evidence she provided.
8. I considered the Council’s response to my enquiries as well as relevant law, policy and guidance.
9. Mrs 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

Relevant law and guidance

10. The children’s statutory complaints procedure was set up to provide children and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. 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. Councils must use the statutory procedure to respond to issues which fall under its remit, providing the complaint is made by an eligible person.

Who may complain?

12. Councils are required to consider representations including complaints under the statutory procedure made to it by:

• Any child or young person (or a parent of his or someone who has parental responsibility for him) who is being looked after by the council or is not looked after by them but is in need;
• Such other person as the council consider has sufficient interest in the child’s welfare to warrant his representation being considered by them.

(Children Act 1989, Sections 26(3) and 24D)

What may be complained about?

13. The legislation sets out what matters councils should consider through the statutory procedure which includes:

• delay in decision making or provision of services;
• an unwelcome or disputed decision.

What is exempt from the complaints’ procedure?

14. The complaints procedure does not apply when the person complaining does not meet the requirements of “who may complain” and is not acting on behalf of such an individual. It also does not apply when the complaint is not about the actions or decisions of the council, or of anybody acting on its behalf.
15. Councils have discretion in deciding whether to consider complaints where there are concurrent investigations such as court proceedings (Regulation 8). If the council decides not to consider the complaint on that basis, it must write to the complainant explaining the reason for this decision and specifying the relevant concurrent investigation (Regulation 8 (3)).
16. Once the concurrent investigation has concluded the complainant may resubmit their complaint to the council as long as it within one year of the conclusion of the concurrent investigation.

What happened

17. This section sets out the key events in this case and is not intended to be a detailed chronology.
18. Mr and Mrs X have grandchildren who previously lived with their parent. Mr and Mrs X said their grandchildren were temporarily placed in their care by the Council after being removed from their home following concerns for their safety. The grandchildren were later placed in foster care by the Council.
19. Mr and Mrs X said they attended Council meetings in relation to the safety and care of their grandchildren and advocated for them at those meetings as well as making referrals to the Council when they believed the children were at risk of harm.
20. Mr and Mrs X complained to the Council about matters related to the safeguarding of their grandchildren including the Council’s decision not to act sooner to protect them from further harm. They asked the Council to consider their complaint under the children’s statutory complaints procedure.
21. Records show the Council discussed that there were ongoing court proceedings about the grandchildren’s care and this may affect if it could respond. However, it did not make a decision on that point. The Council wrote to Mr and Mrs X and said it was unable to progress their concerns as a complaint because they did not hold parental responsibility for the grandchildren, and it could not share any information about its involvement with the children’s family.
22. Mrs X complained to us. She said she was unhappy that the Council had missed opportunities to protect their grandchildren from further harm, was adult focussed and had not considered “the voice of the child”. She was also unhappy with its refusal to consider their complaint.

Council’s response to our enquiries

23. The Council told us there was ongoing court proceedings at the time of Mr and Mrs X’s complaint and at the time of this investigation and so it did not consider the complaint. It also reiterated that Mr and Mrs X did not have parental responsibility to complain under the statutory complaints procedure and that sharing any information with them would amount to a data breach.

Findings

24. Mr and Mrs X complained about a Council decision regarding their grandchildren’s safety and wellbeing, this was a matter that should have been considered through the children’s statutory complaints procedure as set out in paragraph 13. The Council refused Mr and Mrs X’s complaint because they did not have parental responsibility for their grandchildren. That was not in line with the guidance about who can complain as set out in paragraph 12.
25. The Council should have considered whether or not Mr and Mrs X had sufficient interest in the welfare of their grandchildren to warrant their concerns being considered as a complaint under the statutory procedure. There is no evidence the Council considered this or took into account:
• they had previously cared for their grandchildren, on the Council’s request;
• they had advocated for the grandchildren and raised concerns for their safety and welfare to the Council; or
• as the children were no longer living with their parent(s) and were cared for by the Council, Mr and Mrs X were potentially the only family members complaining on behalf of the grandchildren.
26. The Council’s failure to properly consider if it should investigate Mr and Mrs X complaint about the care of their grandchildren through the children’s statutory complaints procedure was fault.
27. The Council stated it could not have shared information with Mr and Mrs X about its involvement with the children’s family as that would amount to a data breach and so it refused their complaint. This is not a valid reason not to consider the complaint, but may affect how the Council could share the outcome with Mr and Mrs X. The Council could have considered ways it could have shared the outcome of its complaint investigation with Mr and Mrs X; it could have prepared two versions of its investigation report and shared a redacted version of this report with Mr and Mrs X to avoid any data breach. The Council’s reliance on this reason to refuse the complaint was also fault.
28. The Council told us it did not consider Mr and Mrs X’s complaint as there was an interim care order at the time of the complaint and at the time of this investigation there were ongoing court proceedings. Although the Council discussed this, it did not make a decision on this basis at the time. The Council had discretion to decide whether or not to accept a complaint regardless of the matter being subject to any concurrent investigations or court proceedings. It has provided no evidence to show how it used this discretion, at the time, in deciding not to investigate Mr and Mrs X’s complaint. This was fault
29. The Council’s faults identified above caused Mr and Mrs X avoidable frustration and uncertainty. I cannot say what the Council would have decided if it had properly considered the “sufficient interest” test, how it could share the outcome of any investigation without sharing confidential information, or its discretion in relation to ongoing court proceedings at the time in its decision to refuse the complaint under the statutory complaints procedure.

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Agreed action

30. Within one month of this decision the Council will:
1. apologise to Mr and Mrs X for the avoidable frustration and uncertainty they were caused by the Council’s fault. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making this apology.
2. decide if it will investigate Mr and Mrs X’s complaint giving proper consideration of their “sufficient interest” in their grandchildren’s welfare in line with the statutory guidance and with consideration of any ongoing court proceedings. If it decides it is unable to progress the complaint, it will record its reasons for this decision and write to Mr and Mrs X to explain its decision. If it decides not to progress the complaint on the basis of ongoing court proceedings only, it will consider Mr and Mrs X’s complaint once the proceedings have ended if they still wished to complain.
31. Within two months this decision the Council will remind staff, either through training or a briefing note, of the importance of considering relevant eligibility tests and other matters in line with the statutory guidance on the children’s statutory complaints procedure.
32. The Council will provide us with evidence it has complied with the above actions.

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Decision

33. I found fault causing injustice and the Council agreed to my recommendation to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman