Summary: Mrs X complained about the adequacy of the Council’s handling of her complaints about a lack of social care and support for her disabled son, F, at stage 2 of the children’s statutory complaints procedure. The Council fettered its discretion to consider Mrs X’s late request to progress the complaint to a stage 3 review panel. The Council agreed to apologise to Mrs X for the distress and uncertainty this caused. It agreed to arrange and hold a stage 3 review panel within one month of the final decision.

The complaint

1. Mrs X complained about the Council’s handling of her complaints about a lack of social care and support for her disabled son, F, under the children’s statutory complaints procedure. Mrs X was unhappy with the outcome of the stage 2 investigation, however the Council has refused her late request to escalate it to a stage 3 panel.
2. Mrs X said the matter is causing her distress and uncertainty and her complaint remains unresolved.

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What I have investigated

3. I have investigated whether the Council properly considered Mrs X’s complaint. I have not investigated the substantive matters for the reasons given in paragraph 29.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I spoke to Mrs X about her complaint.
8. I considered information from the Council including its stage 2 investigation report, adjudication letter and its response to Mrs X's request for a stage 3 panel review.
9. I considered relevant statutory guidance and the Ombudsman’s guide to practitioners.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

The Children’s Statutory Complaints Procedure

11. The Children Act 1989 and statutory guidance ‘Getting the Best from Complaints’ outlines a statutory complaints process which councils must follow for certain complaints about children’s services. The procedure aims to ensure children and young people have their concerns resolved swiftly and, wherever possible, by the people who provide the service locally.
12. The statutory complaints process has three stages:
• local resolution by the Council (Stage 1);
• an investigation by an independent investigator not involved with the case, who will prepare a detailed report and findings (Stage 2). The Council then issues an adjudication letter which sets out its response to the findings; and, if the person making the complaint asks;
• an independent review panel to consider their representations (Stage 3).
13. The timescales in working days for the procedure are:
• 10 days at stage 1 (with a further 10 days for more complex complaints);
• 25 days at stage 2 (with maximum extension of 65 days)
• 20 days for the complainant to request a review panel;
• 30 days to convene and hold the review panel at stage 3.
14. Annexe 3 of the guidance refers to an early referral to the Ombudsman. It says a number of important safeguards must be in place before proceeding with this option. It says stage 2 must have delivered;
• a very robust report;
• an outcome where all complaints have been upheld;
15. The guidance says the Ombudsman will apply a test of reasonableness to any early referral decision. If he decides that early referral was incorrect, he may propose the complaint is considered by the council at a stage 3 review panel in the normal manner.

The Ombudsman’s Children’s statutory complaints process ‘Guide for Practitioners’

16. In March 2021 we issued our own guide for practitioners about the children’s statutory complaints procedure. The guide shares learning from our investigations about how councils should apply the regulations and statutory guidance and to address the most common questions we receive.
17. The guide states while there is a statutory deadline to ask for a stage 3 review, we expect councils to consider the circumstances of each case which may mean a late request is reasonable. With late requests, the primary consideration should be what is the best way of resolving the complaint, rather than avoiding progressing complaints to the next stage.

Fettering discretion

18. It is a general principle of administrative law that public bodies should not ‘fetter their discretion’. This means they should consider whether there are exceptional circumstances that justify departing from usual policy to prevent injustice to applicants whose circumstances place them at a disadvantage.

What happened

19. In January 2020 Mrs X complained to the Council about a lack of social care and inadequate assessments for her disabled son, F. The Council responded to Mrs X at stage 1 of the statutory children’s complaints procedure in February 2020. Mrs X was unhappy with the Council’s stage 1 response and asked it to escalate the matter to stage 2. The Council sent Mrs X an acknowledgement email in early March 2020 confirming this and asked its officers to arrange a meeting with Mrs X.
20. In August 2020 Mrs X complained to us because the Council had not carried out the stage 2 investigation or made any further contact with her. Mrs X also had a solicitor acting on her behalf who wrote to the Council and had also not received a response. We asked the Council for an update and it confirmed the matter had not progressed to stage 2 but was planning to do so.
21. The Council wrote to Mrs X and agreed to carry out the delayed stage 2 investigation. The Council agreed the statement of complaint with Mrs X in November 2020. The Council wrote to Mrs X with its stage 2 adjudication letter at the end of February 2021. The Council upheld six out of eleven complaints including the significant delay in starting the stage 2 investigation. It agreed to carry out several recommended actions from the investigator’s findings. The adjudication letter stated that if Mrs X wished to request a stage 3 review panel then ‘it would be helpful if you could let us know within the next 20 days or as soon as possible given the current public health emergency’.
22. In May 2021 Mrs X’s solicitor wrote to the Council requesting it escalate the complaint to a stage 3 review panel. The letter outlined the reasons why Mrs X remained unhappy and explained F was still without adequate social care support.
23. In early June 2021 the Council contacted us to tell us it had received Mrs X’s stage 3 request. We told it that Mrs X should complete stage 3 before bringing the complaint to us. The Council told us however it had realised Mrs X’s request for stage 3 was out of time. The Council therefore said it would not progress the complaint to stage 3.
24. Mrs X asked us to consider her complaint and the Council’s refusal to progress her complaint to stage 3.

My findings

25. Mrs X was unhappy with the outcome of the Council’s stage 2 investigation which did not uphold all of the complaints. Therefore, it was Mrs X’s right to request the matter progress to a stage 3 panel and the complaint does not meet the criteria for an early referral to us.
26. The Council is correct that relevant law states complainants must request stage 3 within 20 working days. However, the Council has discretion to consider late requests and whether individual circumstances merit using that discretion. Statutory guidance also makes it clear that the focus of complaint handling should be on resolving complaints locally, as swiftly as possible. We issued our guide to practitioners to all councils earlier in 2021. Our guide also expects councils to consider circumstances in each case. It also expects councils to consider whether progressing the late request to stage 3 is the best way of resolving the complaint.
27. Mrs X was using a solicitor to progress the matter to stage 3 and the adjudication letter was issued in the middle of a national lockdown due to the COVID-19 pandemic. There is no evidence the Council considered whether these issues impacted Mrs X’s ability to request stage 3 sooner and it did not contact Mrs X to obtain further information about why her request was late. The Council fettered its discretion to consider Mrs X’s late request which is not in line with the principles set out in the statutory guidance or our guide to practitioners and that was fault. It caused Mrs X distress and uncertainty.
28. I have also considered the wording of the Council’s adjudication letter which said if she wanted to progress to stage 3 ‘it would be helpful if you could let us know within the next 20 days or as soon as possible given the current public health emergency’. The letter did not tell Mrs X that she ‘must’ request stage 3 within 20 working days, instead the letter indicated flexibility as it was issued during a national lockdown due to COVID-19. The Council itself had also caused significant delay at stage 2. I would have expected the Council to have considered these points when it received Mrs X’s late request. Again, not doing so was fault.
29. I have considered whether we should investigate Mrs X’s substantive complaints and the adequacy of the stage 2 investigation but have decided a stage 3 review panel is best placed to deal with it first. Mrs X remains dissatisfied and says F is still without adequate support from the Council. This potential ongoing injustice warrants further consideration at stage 3 of the statutory process. The timescales set out in the statutory guidance are there to ensure complaints are dealt with as swiftly as possible, rather than to be used as a reason to refuse to progress a complaint through the process. The guidance is clear that councils are obliged to ensure a complaint proceeds through all three stages of the procedure, if this is the complainants wish. Mrs X retains the right to return to the Ombudsman once the statutory children’s procedure is exhausted.

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Agreed action

30. Within one month of the final decision the Council agreed to:
• write to Mrs X and apologise for the distress and uncertainty caused when it fettered its discretion to consider whether to accept her late request for a stage 3 panel.
• Arrange and hold a stage 3 review panel to consider Mrs X’s complaints in line with statutory guidance and our guide to practitioners.

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Final decision

31. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman