Summary: Miss X and Mrs Y complain about the Council’s handling and outcome on their complaints about children’s social care. They say the Council has not considered the financial loss, hardship and trauma suffered. The Ombudsman finds fault in the Council’s consideration of the complaint at Stage 3. The Ombudsman recommends the Council pays £500 for time and trouble and £1000 for the distress suffered by Miss X and Mrs Y.

The complaint

1. Miss X and her mother, Mrs Y, are unhappy with the Council’s handling and outcome on their complaints about children’s social care. Mrs Y says the Council has not considered the financial loss, hardship and trauma they have suffered.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. 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.
6. If we are satisfied with a council’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

7. I spoke to Mrs Y about the complaint and I reviewed documents provided by Mrs Y and the Council. I gave Mrs Y, Miss X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

Statutory children’s complaints process

8. The Government issues statutory guidance on the procedure for dealing with complaints about children’s services: “Getting the best from complaints”. This makes clear councils can only vary from the statutory complaints procedure in exceptional circumstances.
9. Complaints made by or on behalf of children about council services must follow a three stage statutory complaints procedure: local resolution, investigation and review panel.
10. Stage 1 local resolution. A council should provide a stage 1 response within 10 working days of receiving a complaint.
11. Stage 2 independent investigation. An independent investigator will issue a report with oversight from an independent person. A senior manager at the council should then consider the report and provide a stage 2 response within 25 working days of receiving a request to go to stage 2. If a person remains unhappy they can ask for a panel review at stage 3.
12. Stage 3 panel. The panel should meet within 30 working days of the request for a review and provide its report within 5 working days of the meeting. The panel should not reinvestigate complaints or consider new complaints not first considered stage 2. The panel will consider the adequacy of the Stage 2 investigation; address the complaints and desired outcomes; reach findings on each of the complaints being reviewed; identify any consequent injustice to the complainant where complaints are upheld and; recommend appropriate redress. The panel should provide a fair and accessible process.

What happened

13. Miss X is a young adult with disabilities. In 2016 a social worker began a Single Assessment of Miss X. She completed this in April 2016. The social worker and her manager had concerns Mrs Y had fabricated or induced illness (FII) in Miss X. They began s47 safeguarding enquiries and held a strategy meeting with other professionals. The outcome of the meeting was to take no further action. From July 2016 Miss X underwent major surgery to address the health issues complained of.
14. In January 2018 Miss X and Mrs Y complained to the Council about their treatment, the incorrect and damaging Single Assessment and the unwarranted allegation of FII. They said there had been a delay in the assessment and commissioned care. They were also concerned the Council had not provided accurate information to professionals or updated them on the major surgery Miss X had since undergone.
15. I have summarised the Council’s stage 1 response as follows:
• There was no evidence its social worker or her manager bullied and harassed them, but it apologised they felt that way.
• They should provide information about missing or inaccurate records and it would consider and amend as needed.
• It assessed Miss X annually.
• Delays in care were addressed through the judicial review process. Miss X and Mrs Y had agreed to withdraw that part of their claim as they had reached an agreement with the Council regarding care.
• It apologised for not providing support to Mrs Y as a carer as she expected.
• It explained it did not have access to current information about Miss X’s health but if provided it would update their records.
16. Miss X and Mrs Y were unhappy with the Council’s response and went to Stage 2.
17. The Stage 2 investigator issued a report in February 2019 making findings on six heads of complaint:
• Miss X is unhappy about changes to her care provider. The investigator upheld this complaint. A lack of planning and poor communication meant Miss X was uncertain whether her care provider would change.
• Miss X feels her voice is not heard. The investigator did not uphold this complaint. There was evidence Council officers made efforts to listen and take account of Miss X’s views.
• The actions of two staff members. While Miss X and Mrs Y felt bullied and harassed by a social worker and her manager, the Council officers denied such behaviour. However, the investigator upheld the complaint that the social worker and manager did not understand Miss X’s diagnosis and questioned the judgements of health professionals. They also partially upheld there were failures to follow correct procedures during s47 enquiries and poor record keeping. But found no evidence Miss X and Mrs Y were forced to attend meetings when unwell. The investigator noted both members of staff had since left the Council.
• In relation to s47 enquiries and the social worker’s concerns of FII, the Stage 2 investigator found the social worker failed to consider relevant information and did not records reasons for decisions. He says the social worker “seems to have been actively trying to make this case fit the FII criteria and it appears from the evidence looked at that information was sought only to fit her hypothesis. It is unclear why this was the case, but it could be suggested that it was a relatively inexperienced social worker being overzealous.”
• Inaccurate records. The investigator partially upheld this complaint as there are inaccuracies in the records but the family had been given the chance to check and amend them.
• Delay in assessment. The investigator upheld that the date of the Single Assessment and content were incorrect. The investigator did not look at delay in the assessment itself or commissioned care as that was the subject of court proceedings.
• Cancellation of a trial (a personalisation project focused on gathering views). The investigator upheld this complaint as the Council did not manage expectations and the trial was abruptly halted.
18. The Stage 2 investigator set out outcomes and recommendations. Within the outcomes they said:
• The Council should amend inaccurate records. Miss X and Mrs Y should take up the Council’s offer to check and amend records.
• The Council should acknowledge the distress caused to Miss X and Mrs Y. But the investigator cannot decide on financial redress.
• The Council should apologise and make clear there were no further actions following the allegation of FII against Mrs Y. Miss X should tell the Council which professionals she wants it to update.
19. The Stage 2 investigator also recommended the Council:
• Offered a full apology for upheld complaints.
• Supported Miss X to review her records with a professional who could explain what the Council can and cannot amend. Correct factual errors and record additional information in line with Miss X’s wishes.
• Audited how it records management advice and decisions.
• Worked with health colleagues to agree a clear and well understood pathway for FII (Perplexing Presentation) in the county.
• Immediately started work with Miss X on planning and preparing for her transition to Adult Services.
20. The Council issued its response to the Stage 2 report, accepting the findings at Stage 2. The Council:
• Apologised;
• Explained it could add comments or amend Miss X’s records. Miss X should say if she would like to see all her records and it will arrange this;
• Confirmed it had auditing processes in place already;
• Confirmed it had agreed protocols with heath colleagues on FII already;
• Acknowledged Miss X did not yet want a referral to adult social services;
• Offered to contact professionals specified by Miss X to inform them there were no further actions regarding the allegation of FII;
• Offered £500 for time and trouble.
21. Miss X told the Council she was unhappy with the Stage 2 response and wanted to go to Stage 3. In summary she said:
• The Stage 2 report did not recognise her own experienced pain, evidence from her GP, carers, school and other professionals that contradicted the evidence relied on by the social worker alleging FII.
• She was concerned others could suffer unfounded allegations of FII.
• The Council’s Single Assessment is inaccurate and the Council has not considered the impact this had on them.
• The Council has not provided a full apology as recommended.
• The Council has not considered the impact to them.
• Stage 2 recommended the Council review its procedures but the Council has denied it needs to.
• The Stage 2 investigator did not consider referring the Council to the HCPC or Ofsted.
22. On 12 June Mrs Y told the Council she wanted a number of professionals to attend the Stage 3 hearing to present evidence. This included Miss X’s teaching assistant, who would provide evidence and personal care support to Miss X.
23. The Council asked the Stage 3 panel and on 14 June told Mrs Y the panel would not allow professionals to attend to give evidence.
24. Mrs Y took this to mean Miss X could not have a carer with her. On 26 June the Council confirmed this was not the case and Miss X could have a carer attend.
25. On 1 July Miss X’s advocate told the Council the family would not attend the Stage 3 hearing due to distress caused by the Council sharing the Single Assessment with the Stage 3 panel.
26. The Stage 3 review took place in July 2019. The Stage 3 panel report refers to Miss X’s request for professionals to attend the review meeting. The panel refused, explaining its purpose is to review the Stage 2 investigation, not to carry out a further investigation or look at new evidence. The panel also confirmed it would not review any complaints upheld at Stage 2 or related matters, in line with procedures.
27. The Council sent Miss X its response to the Stage 3 report in August.
28. Miss X and Mrs Y then contacted the Ombudsman. In summary they said:
• The Stage 2 investigator found fault by a social worker and manager but did not make recommendations to address this.
• The Stage 2 investigator should have asked the Council to refer the social worker and manager to the HCPC.
• They expected the Council’s Stage 2 response to be from a director; they feel the Council has minimised the seriousness of the findings.
• They think the Council should anonymise the Stage 2 report, publish and share it with Ofsted.
• The Stage 3 panel did not address their points or consider the impact of identified faults on them.
• The Stage 3 panel diminished the findings at Stage 2.
• The Council told Miss X her carer could not attend the Stage 3 review meeting. Once the Council reconsidered it was too late for her carer to attend, because of this neither Miss X nor Mrs Y attended.
• The Council refused to allow them to bring health professionals to the Stage 3 review meeting who would have confirmed Miss X’s own account of her health.
• The Council shared a copy of its Single Assessment with Miss X and the Stage 3 panel without consent.
• The Council has not completed the remedies agreed at Stage 2. It has not sent retractions to professionals or gone through amendments of records with Miss X.
• They want the Council to consider the wider issues; amend records; issue retractions; learn lessons and consider the impact to them.
29. When I spoke to Mrs Y she said the delay in assessment and extra care from December 2015 to June 2016 meant she struggled to care for Miss X while both were very unwell. She had been subjected to unfounded allegations of FII from 2016 which the Council had still not removed from all records. The impact of these allegations caused undue stress preventing Mrs Y from continuing to care for her foster son. Further, that Miss X was denied an electric wheelchair as a result of the Council’s actions, which had a detrimental impact on her mobility and independence.
30. In response to my enquiries the Council said:
• A Director and then a senior manager responded at Stage 2 and 3 in line with the statutory process
• It recognises there is an emotional impact when a safeguarding concern is raised but it has a statutory duty to follow up such matters.
• It recognises the shortcomings of its social worker and notes Miss X has since contacted the HCPC.
• It has since met with Mrs Y and others about its procedures around FII and revised its guidance as a result.
• At no stage did it say Miss X’s carer could not attend the Stage 3 review meeting.
• The Stage 3 panel considered and refused the request for health professionals to attend as explained in their report.
• It gave the Single Assessment to the Stage 3 panel as it felt this was relevant, and Mrs Y had included a copy at Stage 2. It has referred the alleged data breach to its Information Team.
• It contacted the professionals who were present at the s47 strategy meeting to tell them the outcome. It also gave Miss X a letter she could use to tell any other professionals.
• It has apologised.
• It has disclosed records to Miss X following a Subject Access Request and communications are ongoing.
• It has an auditing process in place and procedures on FII. It is in the process of finalising revised procedures.
• Miss X asked to wait until after her GCSEs before planning her transition to adult services. Work is now continuing.
• The Stage 3 panel focused on complaints which had not been upheld at Stage 2, as set out in its report.
• Regarding a further remedy, it notes Mrs Y was given an additional direct payment to meet additional care needs between December 2015 and July 2016. The decision regarding the wheelchair would have been made by the occupational health service, which is not part of the Council. And, it previously offered £500 but is willing to offer £1000 for the increased time and trouble in pursuing the complaint.

Findings

31. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. Rather, we must consider whether there was fault in the way the decision was reached. This means I can consider if there was any fault in the statutory complaints process that affected the decisions reached. I cannot reinvestigate the complaint and reach my own conclusions.
32. The Stage 2 investigator identified fault by a social worker and manager but noted both had since left the Council. In terms of wider improvements they recommended the Council had a clear FII pathway, which the Council confirmed was in place. I am therefore satisfied the Stage 2 investigator identified fault and made recommendations to address this. Miss X and Mrs Y may want different outcomes but that does not mean I can say the outcomes reached at Stage 2 are wrong. I find no evidence of fault in the decision making process.
33. The Stage 2 investigator could have given information about referral to professional bodies if they thought this appropriate. But this was not a desired outcome for consideration and so I find the omission does not amount to fault. The Stage 3 panel will not consider new matters and Miss X can self refer to professional bodies. I therefore find no fault causing injustice.
34. The Council’s Stage 2 response is signed off by a Director and its Stage 3 response by a senior manager. This is in line with the statutory process. I note Miss X and Mrs Y feel the Council has minimised its failings. However, I consider this is a matter of perception and there is no objective evidence of fault by the Council.
35. The Council has no duty to anonymise and publish the Stage 2 report and therefore I cannot find it at fault for not doing so.
36. The Stage 3 panel refused to allow health professionals to attend the review meeting because its role is not to reinvestigate the complaint. I note this decision is in accordance with the statutory process which makes clear Stage 3 is not a reinvestigation. I therefore find no fault.
37. Miss X says the Council refused to allow her carer to attend the Stage 3 review meeting with her, however the Council denies this. Having reviewed the documents provided it is clear there was a miscommunication. The Stage 3 panel refused to allow professionals to attend to give evidence. The Council later clarified it would of course allow a carer to attend. I find no fault causing injustice.
38. Miss X and Mrs Y wanted the Stage 3 panel to consider further remedies in respect of complaints upheld at Stage 2. However, the panel said it would not consider upheld complaints in accordance with procedure. I asked the Council for a copy of this procedure and it referred me back to the panel’s report. However, the statutory guidance makes clear the Stage 3 panel should focus on achieving resolution for the complainant and recommend appropriate redress. The Stage 3 panel did not do this and I therefore find fault.
39. The Council has provided evidence of its efforts to comply with the recommendations at Stage 2 and Stage 3. Although the Council has not directly contacted all health professionals specified by Miss X, it has given her a letter she can send to any other relevant person. I consider this sufficient to meet the recommendation.
40. The Council has not yet amended records as Miss X wishes. However, I note the Council is in ongoing communications with Miss X about whether it has complied with her SAR. As this is ongoing, I cannot assess any fault or injustice at this stage. If Miss X remains unhappy at the end of this process, she may then ask the Ombudsman to consider if there has been any undue delay in the completion of the stage 2 recommendation.
41. The Stage 2 investigator suggested the Council should acknowledge the distress to Miss X and Mrs Y. I note the Council offered £500 for the time and trouble in them having to pursue the complaint. However, it did not offer a remedy to recognise the distress suffered. The Stage 3 panel then also failed to consider the impact to Miss X and Mrs Y causing them to pursue a complaint to the Ombudsman. I note the Council has since offered a further £500 for time and trouble. However, I consider this insufficient for the reasons explained below.
42. In relation to the time and trouble to Miss X and Mrs Y in pursuing their complaint, I consider the Council’s original offer of £500 reasonable. However, I do not consider the further £500 offered by the Council adequately recognises the distress suffered by Miss X and Mrs Y as a result of the upheld complaints.
43. The Stage 2 investigation found the social worker did not follow a proper decision making process before holding a s47 strategy meeting about FII. While I recognise the Council has a duty to deal with safeguarding concerns, on balance I find it unlikely this action would have been taken had the social worker acted correctly. I accept Miss X and Mrs Y suffered considerable distress and I acknowledge Mrs Y felt unable to continue to care for her foster son as a result. I am also mindful Miss X and Mrs Y continued to suffer distress until the Council told relevant professionals the concerns were unsubstantiated and there was no further action. Bearing this is mind and considering the impact of the remaining upheld complaints, I consider £1000 better reflects the distress to Miss X and Mrs Y.
44. In considering a remedy for distress I have not taken into account any matters the Council has not yet investigated or any matters subject to court proceedings. The Council’s records show its social worker informed a third party that Miss X should not have a powered wheelchair. However, it appears the decision remained for the NHS to take. As the NHS is not a body within my jurisdiction I cannot investigate its decision making.
45. I will not investigate the complaint the Council shared the Single Assessment at Stage 3 without consent. This is because this would be better dealt with by the Information Commissioner’s Office (“ICO”), which is the appropriate body to consider complaints about data protection.

Agreed action

46. To remedy the injustice identified above I recommend the Council carry out the following actions within one month of the date of my decision:
• Pay £500 for time and trouble;
• Pay £1000 for distress;
• Remind Stage 3 panels they are not barred from reviewing complaints upheld at Stage 2.
47. The Council has accepted my recommendations.

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Final decision

48. I have found the Council failed to consider appropriate redress at Stage 3 of the statutory process. The Council has accepted my recommendations I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman