Decision : Upheld
Decision date : 24 Mar 2020
The Ombudsman's final decision:
Summary: Ms X complains the Council failed to deal properly with her complaint about its decision to cut the care package for her two sons. The Council has failed to use the statutory complaints procedure for children’s social care, which appears to be a systemic issue. It will escalate Ms X’s complaint to the second investigative stage of the procedure.
- The complainant, whom I shall call Ms X, complains the Council cut the care package her sons receive without warning at the end of 2018.
- She says the Council has failed to deal with her complaint about this and has not used the statutory complaints procedure for complaints about children’s social care.
What I have investigated
- I have investigated how the Council dealt with Ms X’s complaint. I give my reason for not investigating the substantive matter of the complaint at the end of this statement.
The Ombudsman’s role and powers
- 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)
- 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)
- 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.
How I considered this complaint
- I read Ms X’s complaint spoke to her on the telephone. I considered statutory guidance, Getting the Best from Complaints 2006, which covers complaints about children’s social care. I also took account of previous cases (17 001 624, 17 001 627 and 19 011 650). In these, the Council failed to consider children’s complaints under the procedure laid out in Getting the Best from Complaints 2006. I shared a draft of this decision with both parties and invited their comments.
What I found
What should have happened?
- Councils with social care responsibilities must use the statutory complaints procedure for children’s social care complaints. This procedure is laid out in Getting the Best from Complaints 2006.
- Where a complaint is covered by this procedure and the person is entitled to complain, a council must follow a formal three-stage procedure.
- The first stage has a maximum of 10 working days (with an extra 10 days for a complex complaint) and involves a written response from the council. Where a council upholds all the parts of a complaint, it does not have to deal with it further. Otherwise, if a complainant wants to move the complaint to the second stage, the council must do so. This also applies where the council runs out of time at the first stage.
- There is a 25 working-day timescale for the second stage, which is in the form of an investigation. But this can be extended to 65 working days in complex cases if the complainant agrees. This timescale starts on the day a council receives the second-stage request, if it is in writing. It starts on the day the complainant agrees the complaint wording with the investigator, if the request to escalate is verbal. Councils must appoint an investigating officer, who may work for the council, but have no involvement with the staff involved in the complaint. Alternatively, many councils chose to appoint persons who are not members of staff. In either case, councils must also appoint an independent person to ensure impartiality in the investigation. The 25 or 65 working day period also includes any time taken for a senior officer to adjudicate the investigating officer’s report and write to the complainant with the decision.
- Where a council and the complainant are both happy to do so, the complainant may ask the Ombudsman to consider the matter after the second stage ends. Where either party ask for the third stage, it is mandatory. This is a panel hearing. The hearing does not re-investigate the complaint. Instead, it considers whether the second-stage investigation was properly conducted. It must be held within 30 working days of a request from the complainant.
What happened, and was this fault?
- Ms X complained to the Council in writing on 2 December 2018 about a decision to cut a care package for her children she disputed. The Council responded in writing on 9 January 2019. This was four working days late. It upheld one of the two points of complaint. Its letter said Ms X should contact it to discuss her options if she was still dissatisfied.
- On 25 January 2019, Ms X emailed the Council. She said it was inconsistent that the Council had upheld only one of the two points of complaint as they were linked. She asked to escalate her complaint.
- As the Council had not uphold all the points of complaint, it had to escalate the complaint to the second stage for an investigation. Because Ms X made her request in writing, the timescale for the second stage investigation started on 25 January 2019.
- On 31 January, the Council emailed Ms X, asking her to clarify what she disagreed with and what outcome she wanted. It said it would consider her request. It did not start a second stage investigation. This was fault.
- On 2 March 2019, Ms X chased her request for escalation by email. The Council replied by on 4 March. The email did not answer her request, but it said the Council would arrange a Child in Need meeting. This second failure to adhere to the statutory process was further fault. A Child in Need meeting is not substitute for a statutory complaints process.
- On 6 March 2019, Ms X emailed again, chasing the escalation and making it clear what she wanted as an outcome, which was the re-instatement of the care package for her children. The Council acknowledged this the following day, but it did not escalate her complaint by starting a second stage investigation. This was the third time the Council failed to escalate Ms X’s complaint.
- Despite further emails from Ms X, the Council had still not escalated her complaint when she approached us in November 2019.
- It is of concern that this case is part of a pattern of the Council failing to adhere to the statutory process for dealing with social care complaints by or on behalf of children. It is not for the Council to substitute its own methods for statutory guidance.
Did the fault found cause injustice?
- As the Council has not yet investigated Ms X’s complaint, it is not possible to say if she or her children have suffered an injustice as a result of the fault.
- The Council will begin a second stage investigation in accordance with the procedure laid out in Getting the Best from Complaints 2006. Although my normal recommendation would be for it to do so immediately, I recognise that this might not be possible in the current circumstances. Therefore, it will do so at the earliest opportunity when this does not prevent it carrying out its essential duties concerning the Covid-19 outbreak.
- To prevent further repeats of the fault, the Council has already agreed in case 19 011 650 to remind those who deal with children’s social care complaints that:
- They must deal with complaints received about social care via the statutory process, unless the matter is not one for that process, or the person complaining does not have the right to complain under it;
- While they may offer mediation or other informal methods to resolve complaints alongside the statutory process, this must not be instead of the statutory process, or delay the statutory process at any stage;
- Where a request for escalation to the second stage of the complaints procedure is in writing, they must treat the day of receipt as the first day of the second stage investigation; and
- The second stage investigation has a timescale of 25 working days, or 65 working days in complex cases where the complainant agrees to the extension.
- I have upheld the complaint about the Council’s complaint handling and closed the case as the Council has agreed to start a second stage investigation as soon as this is possible without compromising its essential duties concerning the Covid-19 outbreak.
Parts of the complaint that I did not investigate
- I have not investigated the substantive complaint about cutting the care package. This is because the Council should use the statutory complaints procedure to properly investigate the complaint. If Ms X is dissatisfied once the Council has completed the statutory process, she is welcome to return to us. She should do so promptly, unless there is a good reason that prevents her.
Investigator's decision on behalf of the Ombudsman