Summary: The Council was not at fault for its decision to respond to Mr X’s complaint under its corporate complaints procedure, rather than the Children Act 1989 complaints procedure. And we have not investigated the substantive elements of his complaint, which are about data accuracy and are therefore better suited to the Information Commissioner’s Office.

The complaint

1. Mr X, who is a special guardian of two children, says the Council’s children’s social care service conducted an assessment which was full of inaccuracies. He also says the Council then failed to consider his complaint under the correct procedure.

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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. 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 s34H(1), as amended)
3. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is another body better placed to consider the complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered evidence provided by Mr X and the Council as well as relevant law and guidance.
5. Mr 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

6. There is a three-stage procedure for complaints about certain aspects of children’s social care. I refer to this as ‘the statutory procedure’.
7. The benefit of the statutory procedure is that there is an independent investigation of the complaint (at stage 2), and, if the complainant wishes, an independent review (at stage 3).
8. The statutory basis for the children’s complaints procedure starts with section 26 of the Children Act 1989. The main points are:
• Councils must establish a procedure for considering complaints made to them by “any child who is being looked after by them or who is not being looked after by them but is in need”.
• Under that procedure, a council must consider a complaint from such a child about “the discharge … of any of their qualifying functions in relation to the child”.
• ‘Qualifying functions’ include, among other things, any action taken under Part 3 of the Act (which includes assessment and support delivered to children in need under section 17).
• Certain other people can complain about such matters in relation to such children. These people include the child’s parent, their foster carer, or “any person who is not a parent of his but who has parental responsibility for him” (which would include a special guardian).
9. Mr X’s complaint is about an assessment conducted under section 17 of the Act, which is a qualifying function. And he, as a special guardian of the children, has parental responsibility for them and therefore is eligible to access the statutory procedure (provided the other criteria are satisfied).
10. However, the question here is whether the children are eligible for the statutory procedure. They are not looked-after, and they therefore must be ‘in need’ (or must have been in need) to meet the criteria.
11. The definition of ‘in need’ is laid out in section 17(10) of the Act, which says, “a child shall be taken to be in need if—

(a)he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b)his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c)he is disabled”.

12. Statutory guidance (Working together to safeguard children 2023) says the purpose of an assessment is to “decide whether the child is in need (section 17) or is suffering or is likely to suffer significant harm (section 47)”.
13. Although the process of carrying out an assessment may well form part of a council’s section 17 functions, there is no suggestion that the child being assessed is in any way considered ‘in need’ until the council is satisfied that the section 17(10) criteria apply.
14. The Council’s position is that the children in Mr X’s care were not ‘in need’. With the wording of the Act in mind, and as the outcome of the Council’s assessment was that the children needed no statutory support services, I have found no fault with this position.
15. Although separate statutory guidance (Getting the best from complaints) says special guardians and the children in their care can access the statutory procedure in their own right, section 26(3C) of the Act makes clear that this is only when that complaint is specifically about special guardianship support services. A special guardian can only make a complaint about a section 17 assessment under the statutory procedure if the child in their care is (or was) also ‘in need’.
16. I am satisfied, therefore, that Mr X’s complaint about the section 17 assessment was a suitable matter for the Council’s corporate complaints procedure (which is how the Council dealt with it). There was no fault in the Council’s decision to respond under that procedure.
17. This means that Mr X’s complaint about the inaccurate assessment it is now a matter for the Information Commissioner’s Office (ICO), rather than the Ombudsman. The ICO is better placed to consider complaints about data handling (including accuracy).

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Decision

18. There was no fault in the Council’s handling of Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman