Derbyshire County Council (19 007 721)

Category : Children's care services > Disabled children

Decision : Upheld

Decision date : 22 Nov 2019

The Ombudsman's final decision:

Summary: Mrs F complains the Council has removed social care support for her son. The Council has failed to investigate Mrs F’s complaint under the children’s statutory complaints procedure. The Council has agreed to investigate the complaint under stage 2 of the statutory procedure without delay.

The complaint

  1. Mrs F complains the Council:
      1. has removed social care support for her son, J who is a child in need, without assessing his needs or following due process
      2. wrongly withdrew J’s support when she refused to accept direct payments
      3. delayed dealing with her complaint and refused to consider her complaint at Stage 2
  2. Mrs F says this has affected the family's emotional, mental, and behavioural wellbeing, and has caused J to become more vulnerable.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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.

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How I considered this complaint

  1. I spoke to Mrs F about her complaint and considered the information she sent 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”)
  2. I gave Mrs F and the Council an opportunity to comment on my draft decision.

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What I found

The statutory children’s complaints process

  1. The law sets out a three stage procedure for councils to follow when looking at complaints about children's social care services. The first stage of the procedure is local resolution. More complex complaints do not have to be considered at this stage but, where they are, councils have 20 working days to respond.
  2. The Regulations say that, if a complainant is not happy with a council’s stage 1 response, they can ask that it is considered at stage 2. Regulation 17 says that, if a council has received such a request, it must progress the complaint to stage 2.
  3. At stage 2 of the procedure, the Council appoints an independent investigator and an independent person who is responsible for overseeing the investigation. If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review by a panel.
  4. The Ombudsman would normally expect the full complaints process to be followed before considering a complaint about it. 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.
  5. The Ombudsman has issued a Focus Report about children's social care complaints. We found that a common problem was a refusal by councils to allow complainants to go through all stages of the statutory complaints procedure. In our report, it was clarified that the Ombudsman would be unlikely to accept complaints brought early unless the early referral criteria had been met.

What happened

  1. Mrs F has an adopted son, J, who is a child in need. He was receiving eighty hours of social care mentoring support.
  2. At J’s child in need review in February 2019, the Council told Mrs F it would pay the funding for the eighty hours of support into a direct payment bank account and J’s social care case would be closed. Mrs F complained.
  3. The Council replied on 6 March 2019. It said it had agreed in January 2019 that children receiving direct payments of less than £2,000 per year could be given a one-off payment if social work involvement was not required in the child’s case. The Council said Team around the Family (TAF) meetings would still be held, and this was the appropriate level of intervention for J.
  4. Mrs F remained dissatisfied and a further response was issued on 23 April 2019. This said the Council’s Disability Children's Service had not identified a specific role for a worker, the Council therefore intended to close J's case. However, the Council would provide the direct payment to pay for the mentoring service.
  5. Mrs F asked for her complaint to be escalated to stage 2. The Council wrote to Mrs F on 22 July 2019. It said that J’s social care case had now been closed. It suggested she complain to J’s school about arrangements for TAF meetings.

My findings

  1. Mrs F complains about social care support provided to her child under Part 3 of the Children’s Act 1989. She is therefore entitled to an investigation under the statutory children’s complaints procedure.
  2. Following the stage 1 responses, Mrs F remained dissatisfied and sought escalation. The Council said her complaint did not meet the criteria as J’s social care case had been closed. This is fault. The Regulations are clear that if a complainant asks for escalation, the Council must progress the complaint to stage 2.
  3. The complaint does not meet the criteria of an early referral to the Ombudsman as there has not yet been a stage 2 investigation. My provisional view is therefore that it was fault for the Council not to consider this complaint at stage 2 of the statutory complaints process.
  4. This has caused Mrs F an injustice as her complaint has not been properly considered. A second stage investigator able to carry out interviews and view files on site is better placed than the Ombudsman to deal with matters now.
  5. If Mrs F is still dissatisfied after the stage 2 investigation and both parties agree, she can bring these matters back to the Ombudsman. Alternatively, if either party requires the third panel stage and Mrs F is still dissatisfied after that, she can bring these matters back to us then. In either case, she should so within 12 months of the date of our final decision unless there is a good reason why she cannot do this.
  6. The Ombudsman would not normally re-investigate the matter unless we consider the independent investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

Agreed action

  1. Within one month of my final decision the Council has agreed to:
    • Appoint an Investigating Officer and an Independent Person to start the stage 2 investigation into her complaint.
    • Contact Mrs F to notify her of the arrangements and the process that will be followed.

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Final decision

  1. There was fault by the Council in not dealing with this complaint under the statutory children’s complaints process. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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