Bristol City Council (20 010 071)

Category : Children's care services > Disabled children

Decision : Not upheld

Decision date : 15 Jun 2021

The Ombudsman's final decision:

Summary: Ms D complains about several interconnected matters involving the Council’s children’s services and the support offered to her and her disabled child. We have discontinued our investigation as the Council has agreed to further investigate the complaint via a statutory procedure for complaints about children’s services.

The complaint

  1. I have called the complainant ‘Ms D’. She complains the Council:
  • unreasonably stopped direct payments in autumn 2019, that she received to meet the needs of her disabled child ‘E’; the Council said she had misspent money but Ms D says she had never been told what the payments were to cover despite asking for this information;
  • has an unreasonable policy that requires direct payments to be paid via a ‘pre-payment’ card; Ms D says this limits customer choice;
  • has not done enough to meet E’s needs since stopping the direct payments;
  • has failed to complete a carer’s assessment despite multiple requests;
  • failed to fully investigate her complaint.

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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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint or it would be reasonable for the person to ask for a council review or appeal. (Local Government Act 1974, section 24A(6), 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)

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How I considered this complaint

  1. Before issuing this decision statement I considered Ms D’s written complaint to the Ombudsman and clarified my understanding of it by speaking to her. I also considered papers sent to us by the Council relevant to some of the background of the complaint.
  2. I also sent both Ms D and the Council a copy of a draft decision where I set out my proposal to discontinue the investigation. I gave both sides chance to comment and took account of any comments received before issuing this statement.

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What I found

The statutory complaints procedure for complaints about Children’s Services

  1. The Children’s Act 1989 sets out the complaint procedure where a child or young person is unhappy with the actions of Council’s children’s services. This includes complaints made on behalf of a child or young person. Underpinning the procedure are Regulations and guidance contained in a publication entitled “Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others”.
  2. The statutory procedure has three stages. Stage one gives a council chance to resolve a complaint informally. If it cannot do this, then at stage two it must appoint an Investigating Officer (IO) and an Independent Person (IP), who oversees the investigation. The IO produces a report with their findings and the IP produces a report commenting on the investigation. The Council must then respond to that.
  3. If a complainant remains dissatisfied, they can ask for a stage three review. A panel made up of three people independent of the Council hears the review. The panel will consider the grounds for dissatisfaction with the outcome of the stage two investigation and may recommend the Council take further action.

Brief Chronology of Ms D’s complaint

  1. The Council first recorded Ms D making a complaint about the matters I have summarised in paragraph 1 in December 2019. Although the Council sent me correspondence indicating that earlier, in September 2019, Ms D had expressed dissatisfaction with the decision to suspend direct payments and made a request for a carer’s assessment.
  2. The December 2019 complaint covered the first two parts of the complaint summarised in paragraph 1. Subsequently, and before the Council replied, it appears Ms D also spoke to the Council by telephone and submitted further correspondence outlining her dissatisfaction. I note that by the time the Council responded, in January 2020, it also noted Ms D’s dissatisfaction with the services offered to meet E’s needs.
  3. The letter sent by the Council to Ms D in January 2020 told her that she could escalate her complaint by contacting the Council’s customer service team. While the letter did not state this, the Council has implied the reply sent to Ms D was one made under ‘Stage One’ of the Children’s Act complaint procedure I have described above.
  4. By July 2020 the Council had registered further dissatisfaction from Ms D and treated that as a request to escalate her complaint to Stage 2 of the Children’s Act procedure.
  5. However, at that point the Council suspended the complaint process. It did this because it received a letter from solicitors acting for Ms D and E’s father. The solicitor’s letter was a ‘pre-action protocol’ letter. This refers to a letter that must be served if someone plans on challenging the Council’s actions in the High Court through a process called Judicial Review. The Council’s complaint procedure says that it “will not consider complaints if the complaint relates to issues which are the subject of proceedings in any court or tribunal or the complainant has stated that s/he […] intends to take proceedings in any court or tribunal”.
  6. The Council wrote to Ms D in July 2020 quoting this policy. It said that Ms D’s complaint would be “suspended for the duration” of the planned proceedings being brought by her solicitor. It went on to say that once legal proceedings concluded it would assume Ms D did not want to pursue her complaint. But that if this was not so she could contact it again (so long as this was “within 12 months of the conclusion of legal proceedings”) saying she wanted to reopen the complaint.
  7. The Council replied to the solicitor’s letter later that month. There was also some subsequent correspondence with the solicitor in November 2020. However, this later correspondence did not mention any further prospect of a Judicial Review. And Ms D has told us she is no longer pursuing this possibility.
  8. Consequently, in January 2021 Ms D contacted us and asked us to investigate a complaint in the terms summarised in paragraph 1.
  9. I contacted the Council to make some enquiries about the complaint. In an initial reply the Council said that it would welcome the opportunity to complete an investigation into Ms D’s complaint under the Children’s Act procedure.

My findings

  1. I explained above some of the limited circumstances where we might discontinue an investigation having accepted a case for such. I have decided on this occasion it is appropriate for us to use this discretionary power. I have done so because there is a presumption in law that a complaint about Children’s Services will usually be pursued using the Children’s Act complaint procedure described above. We would usually expect that procedure to complete before coming to a view on whether we should investigate further someone’s complaint.
  2. I have noted the passage of time in this case might suggest it would be fairer for us to pursue our own detailed enquiries into this complaint. I have also noted I know little of what happened with the complaint between January and July 2020 and so there may have been delay by the Council. But against this I balance:
  • the Council was clear in its letter of July 2020 that Ms D could ask for her complaint to be re-opened; she does not appear to have taken up this offer and instead chose to come direct to this office;
  • that the Children’s Act complaint procedure should provide for a thorough investigation of Ms D’s concerns; an independent perspective is inbuilt in the procedure and there is a requirement for close co-operation with the complainant over such matters as agreeing the terms of her complaint; this should provide Ms D with reassurance the process is likely to offer an equivalent service to that of this office;
  • further, if dissatisfied, Ms D will have the right to ask for an independent review board to consider her dissatisfaction and after that, still have the right to ask us to investigate again; she therefore has more opportunity to achieve an outcome to her complaint she considers satisfactory;
  • the Council’s willingness to offer such a route to continue its consideration of Ms D’s complaint.
  1. I consider these factors are persuasive in deciding that I should use my discretion to discontinue this investigation. This is on the understanding the Council will begin a Stage 2 investigation of Ms D’s complaint under the statutory procedure as soon as practicable. Also, that she will not suffer any disadvantage for the time the complaint has been under consideration by this office.
  2. In these circumstances I take no view on the matters summarised in paragraph 1 of this statement.

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Final decision

  1. I have discontinued my investigation for the reasons set out above.

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Investigator's decision on behalf of the Ombudsman

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