Decision : Upheld
Decision date : 11 Jan 2022
The Ombudsman's final decision:
Summary: Mrs X complains about the Council’s handling of her requests for more support for her child since 2018 and her complaints about this. The Council has already addressed and remedied faults identified by considering Mrs X’s complaints through all three stages of the statutory complaint process twice. The Council was at fault for not considering the injustice caused by delay in it progressing both complaints in line with the statutory timescales. The Council has agreed to apologise and make a payment to Mrs X and her child for the impact of the delays. The Council will also remind all relevant staff of the timescales in the statutory complaint process and to consider the impact of any delay.
- The complainant, who I have called Mrs X, complains about the Council’s handling of her request for more support for her child (Child Y) in 2018 and her subsequent complaints about this. Mrs X believes the Council has treated her family differently and unfairly compared to any other family receiving support. Mrs X complains the Council’s failure to obtain information from her and her husband when completing its assessment of Child Y in September 2018 has meant there has still not been a proper assessment of their needs since her request. Mrs X says her child is missing out on essential support because of the Council’s bias against her family and its failure to suggest a way forward in resolving the issues her family has had. Mrs X wants the Council to pay for an independent Social Worker to complete Child Y’s needs assessment and for the Council to agree to provide the support recommended.
The Ombudsman’s role and powers
- 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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
How I considered this complaint
- I have spoken to Mrs X and considered the information she has provided in support of her complaints following the conclusion of the first statutory complaint in early November 2020. I have also considered the content of Mrs X’s subsequent complaint form submitted to us about the Council’s handling of her second statutory complaint, which concluded in late October 2021.
- I have considered the information the Council has provided in response to our enquiries. This has included information about Mrs X’s second statutory complaint.
- 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.
- Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- The Children Act 1989 and statutory guidance Working Together to Safeguard Children sets out the council’s responsibilities to safeguard children.
- The Children Act 1989 says “where a local authority…have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.” (The Children Act 47(1)).
- Harm means ill-treatment or the impairment of health or development, including, for example, impairment suffered from seeing or hearing the ill-treatment of another. (The Children Act 1989 31(9))
- Councils should hold a strategy meeting when they are concerned the threshold for child protection enquiries is met. If the threshold is met, an initial child protection conference must take place within 15 working days of the strategy meeting. The core group should meet within 10 days of the initial child protection conference and then, at a minimum of every 6 weeks. The Council should hold the first child protection review within 3 months of the initial conference. The Council should hold further reviews at intervals of no more than 6 months for as long as the child remains subject of a child protection plan. (Working Together to Safeguard Children)
- If a council accepts a referral for a child, it must carry out a needs assessment. Every assessment should reflect the unique characteristics and needs of the individual child. (Working Together to Safeguard Children)
- Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. When a council assesses a child as being in need under section 17, it should lead a multi-agency assessment and compete it within 45 working days and supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly. The plan must be reviewed within 3 months of the start of the child in need plan and further reviews should take place at least every 6 months thereafter. (Working Together to Safeguard Children)
- Section 17 says a child is in need if they are unlikely to achieve or maintain a reasonable standard of health or development without services provided by the council. Councils can provide services for the whole family or for any individual member of the family if it is provided to safeguard or promote the child’s welfare.
- The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage two of this procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation).
- The timescales in working days for the procedure are:
- 10 days at stage one (with a further 10 days for more complex complaints or additional time if an advocate is required);
- 25 days at stage two (with maximum extension to 65 days);
- 20 days for the complainant to request a Review Panel;
- 30 days to meet and hold the Review Panel at stage three;
- 5 days for the Panel to issue its findings; and
- 15 days for the council to respond to the findings
- During the COVID-19 pandemic, councils must still follow the statutory complaint procedure. However, the government gave councils more flexibility for complainants and councils around the right to request a stage three review panel. Councils were advised they should seek to adhere to the usual timescales for stage three reviews wherever possible and as soon as reasonably practical where this was not feasible. (Adoption and Children (Coronavirus) (Amendment) Regulations 2020)
- If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review. If a council has investigated something under this procedure, we would not normally reinvestigate it unless we consider that investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
- This chronology details key events and does not include everything that happened.
- Child Y is diagnosed with cerebral palsy that affects the mobility of all four of their limbs. Child Y receives help with their condition from a number of health professionals and has an Education, Health and Care Plan (EHCP) to help support them at school.
- In April 2018, Mrs X asked the Council to review the help Child Y received as she felt they needed more support. Shortly afterwards, the Council received a safeguarding referral from health professionals under the category of emotional harm to Child Y and their older sibling Child Z. The Council led a multi-agency strategy meeting which decided the Council should make child protection enquiries to establish if there was a significant risk of harm to the children. The enquiries involved visiting the family and speaking to Mrs X and her husband.
- The Council completed its enquiries in early June 2018. It concluded there was no evidence of a significant risk of harm to the children, but considered there was sufficient concern to warrant placing Child Y on a Child in Need plan following an assessment to establish what further support the family required.
- The Social Worker allocated to undertake the Child in Need assessment attempted to complete this with discussions and visits to speak to Mrs X and her children. Mrs X asked the Council to reallocate the case to another Social Worker, because she felt the current one had not been able to help with a request to change the direct payments received to cover support for Child Y and Child Z. The Council agreed to reassign the case to another Social Worker who had worked with the current Social Worker when completing child protection enquiries. The current Social Worker left the Council shortly after case reallocation in early July 2018.
- The new Social Worker visited Mrs X’s home on 15 August 2018 when they spoke to Child Y and Child Z, while they were being cared for by their nanny and their parents were at work. They completed their assessment of the family in late September 2018, which was approved and sent to Mrs X and her husband on 13 November 2018.
Mrs X’s first statutory complaint
- On 14 December 2018, Mrs X made a stage one complaint about the Council’s assessment of her children. The Council responded to this on 8 February 2019 under the statutory complaint procedure and apologised for the delay in sending its response.
- Mrs X remained unhappy and requested escalation of her complaint to stage two on 18 March 2019. On 3 and 14 May 2019 respectively, the Council appointed an Investigating Officer (IO) and Independent Person (IP) to undertake the stage two investigation.
- The IO and IP met with Mrs X to discuss her complaints and on 19 September 2019, Mrs X confirmed and signed the statement of complaint. The statement contained 31 separate issues of complaint which related overall to Mrs X’s dissatisfaction with the Council’s assessment sent to her on 13 November 2018 in the following ways:
- not informing Mrs X the Council was undertaking a new assessment;
- not seeking her views as a parent/carer;
- that there were numerous inaccuracies in the assessment report; and,
- some of those inaccuracies defamed Mrs X’s character.
- 9 complaints were upheld;
- 17 complaints were not upheld;
- 4 complaints had no finding; and,
- 1 complaint was partially upheld.
- The IO’s report (agreed by the IP) recommended the Council took the following action to remedy the upheld complaints:
- share a copy of the assessment completed as part of the child protection enquiries with Mrs X and any other professionals involved with her family;
- apologise for:
- not sharing the assessment sooner,
- lack of clarity regarding the impact of Mrs X’s mental health on herself and her family;
- not recording information about Child Y’s walker correctly;
- recording the names of some professionals incorrectly in the assessment;
- delay in altering the system to accommodate Mrs X’s direct payment changes;
- not including the reason for child protection enquiries in the assessment;
- convene a professionals meeting to discuss the potential impact of Mrs X’s mental health on her parenting capacity and relationships with her family and professionals involved;
- identify and record the team responsible for tasks in the ‘Back up plan’; and,
- make a definitive statement on whether the Council believes Mrs X frequently seeks medical labels for her children.
- On 23 December 2019, the Council’s Adjudicating Officer (AO) sent their response to the stage two investigation to Mrs X, together with copies of the IO and IP reports. The AO agreed with the IO’s findings and provided apologies for the areas identified by the IO. The AO also enclosed a copy of the Child and Family Assessment the Council undertook following the child protection enquiry. The AO sought Mrs X’s consent to contact Child Y’s general practitioner (GP) to obtain accurate information about their diagnoses. The AO offered to work with Mrs X to complete the Child in Need review meeting and explore what further help the family needed and to create a back-up plan of additional resource if Mrs X was ever unable to care for her children.
- Mrs X remained dissatisfied and on 30 December 2019, she requested escalation of her complaint to stage three. The Council initially offered Mrs X a meeting with the AO to discuss any outstanding concerns, which was arranged for 6 March 2020. Mrs X asked the Council to cancel this meeting as she felt it would not achieve the outcomes she wanted. At the end of March 2020, the Council told Mrs X it had suspended stage three review panel meetings following the first COVID-19 lockdown. The Council offered to contact Mrs X when it resumed stage three panel reviews.
- On 28 July 2020, the Council emailed Mrs X to say it had restarted stage three review panels and would be in contact with her to arrange a suitable date for her complaint.
- The stage three review panel meeting was eventually held on 2 October 2020. Mrs X attended the meeting online with all other attendees, including the IO, IP and representatives from the Council. The panel completed their stage three report on 8 October 2020.
- The review panel considered Mrs X’s submissions and whether they agreed with the complaints the IO and IP had not upheld, partially upheld or made no finding. The panel upheld 11 of the complaints the IO had not upheld and one partially upheld complaint (12 in total). The panel also decided to alter four no finding outcomes the IO reached to not upheld. This meant the outcomes were now 21 complaints upheld and the remaining 10 complaints were not upheld.
- The review panel made the following recommendations:
- apologise to Mrs X for the complaints the panel had upheld;
- review the assessment and plan forms to ensure the front page includes all relevant dates;
- remind social work staff to share assessments with families before finalization to clarify areas of potential contention;
- remind social workers to use all methods of communication to complete assessments, including telephone and video consultations where no significant safeguarding concerns exist; and
- set a clear timetable for the above recommendations to enable tracking of progress through to completion.
- The review panel also considered the outcomes Mrs X had requested, namely for there to be no involvement in the handling of her children’s case by members of the 0-25 Disabilities Team and for an independent Social Worker to undertake an assessment of Child Y and their family, and to continue undertaking any future reviews. Mrs X also asked for letters of apology from each individual Council Officer against whom a complaint was upheld. The panel noted neither the IO nor the AO had mentioned assessment by an independent Social Worker in their responses to Mrs X’s complaint. The panel agreed with the IO’s comment that Mrs X’s complaint was against the Council, so it would be for the organisation as a whole to apologise and not individual members of staff.
- The panel also noted Mrs X’s concerns that the Council was unlikely to follow through with the panel’s recommendations. The panel said while it could not compel compliance, it was reassured the Council was committed to working with Mrs X and her family to resolve the issues highlighted.
- The AO shared the panel’s report with Mrs X on 2 November 2020, together with their response to the panel’s findings. The Council apologised to Mrs X for the complaints the panel had upheld and committed to completing the other recommendations.
- Mrs X brought her concerns to us on 10 December 2020 as she remained dissatisfied with the Council’s handling of her complaints.
Mrs X’s second statutory complaint
- At the end of July 2019, Mrs X made further complaints to the Council. The Council suggested these issues could be added to the ongoing stage two complaint investigation. Mrs X declined and said these new issues were outside the scope of the existing stage two complaint.
- On 16 September 2019, Mrs X asked again for her new concerns to be considered under a second stage two complaint. The Council continued corresponding with Mrs X to try and agree a way forward. On 18 March 2020, the Council sent Mrs X a statement consolidating all her outstanding complaints and asked her to confirm these.
- The Council reached a stalemate with Mrs X about investigating her complaints and at the end of April 2020, Mrs X agreed for the Council to undertake another stage two complaint investigation. The Council appointed an IO and IP on 26 April 2020. The Council had to appoint another IO in May 2020 because the first IO was unable to undertake the investigation. A third and final IO was appointed on 21 May 2020 as the second IO was unable to continue.
- In June and July 2020, the IO and IP had telephone conferences with Mrs X to discuss her complaints. Mrs X agreed and signed the statement of complaint on 27 August 2020. The statement of complaint consisted of Mrs X’s concerns about Children Social Care, Special Education Needs and corporate complaints. In total, 46 complaints (some with further sub-sections) were investigated. Mrs X’s overarching complaint was that the Council had not acted in Child Y’s best interests. She felt the Council’s actions had been discriminatory and poor practice, which meant it had failed in its duty of care to her child.
- At the end of March 2021, the IO completed their stage two report. The IP completed their stage two report on 8 April 2021. The IO, with the IP’s agreement, reached the following outcomes on the 46 complaints:
- 21 complaints were upheld;
- 15 complaints were not upheld;
- 6 complaints were partially upheld;
- 3 complaints had no finding; and,
- 1 complaint was inconclusive.
- The IO made the following recommendations to the Council:
- mediation between the Council and Mrs X, to agree a way forward and work together to focus on the needs of Child Y and how these needs can be best met;
- for an independent Social Worker to complete the Child and Family Assessment;
- for Child Y to be offered advocacy support to ensure their wishes and feelings are known;
- for Managers to ensure the information given to families is accurate;
- to ensure the statutory complaint procedure is managed in line with guidance; and,
- to make payment to Child Y, that was due to them from a previous complaint Mrs X made in 2016.
- The IO also considered the outcomes Mrs X had requested. They concluded there was no evidence of discrimination by the Council against Mrs X or Child Y. The IO did not support Mrs X’s request for an independent case officer to cover all Education, Health and Care Plan (EHCP) matters as this legally cannot be commissioned outside the Council.
- The IO agreed with Mrs X’s request for an independent Social Worker to complete the Child and Family assessment of Child Y, but that this should be supported by the Council’s 0-25 Disabilities Team.
- The IO did not support Mrs X request that all her future complaints about the Council should automatically be investigated by an independent person to prevent further abuse of power. The IO found no evidence of an abuse of power by the Council to justify such action.
- On 25 May 2021, the Council’s Adjudicating Officer (AO) (Head of Service) sent their stage two response to the IO and IP’s reports. As the complaints related to two distinct areas of service, the AO sought comments from the Head of the Special Education Needs Team, which were included in their response. The AO largely agreed with the outcomes the IO and IP reached but came to a different outcome in five complaints. The AO concluded three of the upheld complaints should be partially upheld, one partially upheld complaint should be upheld and one no finding complaint should not be upheld. The AO also explained they did not consider assessment by an independent Social Worker was needed as most of the 0-25 Disabilities Team staff had changed since Mrs X’s complaint. The AO felt this achieved the same objective as an independent Social Worker assessment as these staff members had had no prior involvement with Mrs X and her family.
- The AO apologised to Mrs X for the difficulties highlighted by the IO’s stage two report, offered to explore with Child Y whether they wanted further advocacy support, the delay in making payment to Child Y following a previous complaint and the steps the Council had already taken to address some of the issues Mrs X had raised.
- Mrs X asked for a stage three review of her complaint on 26 May 2021. Between this date and the end of September 2021, the Council continued to correspond with Mrs X to try and arrange a date when all parties were available to attend the stage three review panel meeting. During this time, Mrs X expressed frustration at the delay in arranging the meeting and sought guidance from us about this.
- The stage three review panel met virtually on 1 October 2021 and Mrs X attended. The panel considered 16 complaints Mrs X had identified as she felt there was clear evidence these should be upheld. The panel concluded that the outcomes should be changed for 10 out of the 16 complaints highlighted, with one outcome remaining upheld but where Mrs X had requested a change in the wording as the IO’s report did not accurately reflect the situation. The panel’s findings led to the following outcomes:
- 38 complaints were upheld;
- 4 complaints were not upheld;
- 3 complaints were partially upheld; and,
- 1 complaint had no finding.
- The panel supported all the recommendations the IO made in their stage two report and felt it was imperative for Child Y to be assessed by an independent Social Worker. The panel accepted Mrs X did not trust the Council but found no evidence that, where the Council’s practice had been poor, this was maliciously intentional. The panel also noted that Mrs X had at times made it difficult for the Council to fulfil its duties to Child Y and their family by not being willing to engage with the Council Officers that approached her. The panel noted the Council and Mrs X had the same aim, which was to achieve the best outcomes for Child Y.
- The Adjudicating Officer (AO) for the stage three panel (Director of Children Services) shared the panel’s report, with their response to its findings, with Mrs X on 27 October 2021. The AO apologised for the failings identified by the panel and noted the improvements needed to the Children Social Care and Special Education Needs Team around communication and timely progression of assessments and provision of resources. The AO set out the improvements the Council had already made to these services, including changes in staff, appointing new managers and providing further training to staff. The AO agreed to an independent Social Worker completing the first assessment of Child Y and that future reviews would be completed by the Council’s 0-17 Disabilities Team, which no longer included Social Workers that had previously worked with the family. The AO said they hoped the mediation proposed would help repair the relationship between Mrs X and the Council.
- It is unusual for a council to complete two separate statutory complaint processes largely concurrently for the same complainant. The evidence from the Council and Mrs X shows this has been a complex and difficult interaction for all parties involved for some time.
- What is also apparent is the Council has at times been overwhelmed by the volume of contact, largely complaints, it was receiving from Mrs X. The Council has tried to manage this by dealing with her complaints and then appointing a lead professional to help address further concerns with Mrs X, before these escalate to formal complaints.
- Sadly, this approach proved unsuccessful. It is disappointing that a long-standing lack of clarity in communication between the Council and Mrs X has led to a breakdown in trust and confidence. The biggest problem this has caused is that Child Y has not had their needs properly assessed since 2018. As the second statutory complaint IO highlights, the Council’s desire to address Mrs X’s concerns in the end totally overshadowed its ability to focus on the needs of the children involved. There is certainly much for the Council to reflect on and learn from its handling of this case.
- The Council’s commitment to address Mrs X’s concerns and agreement to conduct a second statutory complaint investigation is commendable. It appears to have clearly seen that the best way to reassure Mrs X was to agree to complete a further independent investigation of all her remaining complaints.
- While Mrs X had not yet brought the handling of the second statutory complaint to us, it is too intrinsically linked to the first statutory complaint for me to overlook. There are elements of significant overlap in the complaints considered by both investigations. The overall outcome from both investigations has been there is no evidence of discrimination or bias against Mrs X and her family by the Council.
- The outcome of the second statutory complaint and the Council’s agreement with the panel’s recommendations provides the remedies Mrs X came to us to achieve. Although I know Mrs X has at times found the process frustrating and has felt the stage two investigations were poor, I have not found anything to suggest the handling of these complaints was so flawed that it could not be put right by the respective review panels. This shows us the statutory process worked as we would expect in this case. Mrs X’s comments to my draft decision statement express her strong disagreement with this.
- The issue that remains outstanding is one of delay in complaint handling. This appears significant in both statutory complaints at various points. The Council’s handling has gone considerably over the timescales set out in the statutory guidance and this has understandably been a source of intense frustration for Mrs X. It is concerning that neither stage three review panel has considered the impact of such considerable delay in complaint progression or whether they needed to provide any kind of remedy to Mrs X for this. This is fault as councils are expected to ensure they complete the statutory process in a timely way. My recommendations below seek to address this.
- I am also concerned that the second stage two complaint investigation found the Council had failed to provide a financial remedy to Child Y since 2016. While the Council has now made this payment, there has again been no consideration for the impact of this substantial delay. It has no doubt added to Mrs X’s distrust and lack of confidence that the Council has been taking her concerns seriously. I have recommended a further remedy for Child Y in recognition of the delay.
- I would echo the second stage three review panel’s comments and stress it is imperative the Council takes the lead in rebuilding its relationship with Mrs X and her family. I too hope the planned mediation will achieve this as Mrs X’s family will need to work with the Council for many years to come.
- Within one month of my final decision, the Council has agreed to:
- apologise to Mrs X for the delay in progressing her complaints;
- pay Mrs X £600 for the distress, time and trouble caused to her and her family by this delay;
- apologise to Child Y for the delay in making the payment it agreed to make following Mrs X’s complaint in 2016 – this remedy should only be provided if Mrs X feels it is appropriate and in a method that suits Child Y’s needs;
- pay Child Y £100 for the delay in making the above payment;
- include a copy of this decision statement on Child Y’s files, with copies of the statutory complaints reports (if not done already);
- remind all relevant staff of the timescales for completing statutory complaints (the Council has confirmed further training for staff early this year); and,
- remind all stage three panel members to consider, and if necessary recommend remedies to address, the impact of delay in the statutory complaint process.
- The Council has agreed to provide us with evidence that it has completed these recommendations.
- I have completed my investigation and found fault with the Council’s handling. While it had already acted to remedy most of the faults identified, it has agreed to take further action to remedy the injustice caused by delay in progressing Mrs X’s complaints.
Investigator's decision on behalf of the Ombudsman