Summary: We do not find fault in the investigation of Miss Y’s complaint about the Council’s social care involvement with her children, C and D. We do not uphold the points of complaint which Miss Y continues to dispute because they have been subject to a thorough and independent investigation. However, we are not satisfied the Council has fully completed all parts of the agreed remedy, so it will undertake the actions listed at the end of this statement.

The complaint

1. The complainant, whom I will call Miss Y, complains about the conclusions reached during an investigation, under the statutory children’s complaints procedure, into her complaint about the Council’s actions regarding the Child Protection and Child in Need plans for her children. Miss Y also complained the social worker dealing with her case lacked knowledge and behaved inappropriately.
2. Miss Y says the outcomes agreed during the complaint investigation do not go far enough in acknowledging the significant errors made by the Council, and the investigation did not provide a suitable remedy for the injustice her family experienced.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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)

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How I considered this complaint

6. During my investigation I discussed the complaint with Miss Y and considered any information she provided.
7. We considered the Ombudsman’s discretion to investigate a late complaint. We decided there was good reason to use our discretion in this case and we have therefore investigated matters which Miss Y has been aware of for more than 12 months.
8. I consulted any relevant law and guidance, cited where necessary in this statement.
9. I issued my provisional findings in a draft decision and invited Miss Y and the Council to make comments. I considered any comments received before making a final decision.

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What I found

Complaints under the statutory procedure

10. Section 26(3) of the Children Act (1989) says all functions of the Council under Part 3 of the Act may form the subject of a complaint under the statutory complaints procedure.
11. Complaint investigations under the statutory procedure consist of three stages:
• Stage 1: Staff within the service area complained about try to resolve the complaint.
• Stage 2: An Investigating Officer (IO) and an Independent Person (IP) investigate the complaint. The IO writes a report which includes details of findings, conclusions and outcomes against each point of complaint (i.e. “upheld” or “not upheld”) and any recommendations to remedy injustice to the complainant.
• Once the IO has finished the report, a senior manager should act as adjudicating officer. They will consider the complaints, the IO’s findings, conclusions, and recommendations, as well as any report from the IP, and the complainant’s desired outcomes. The adjudicating officer should write to the complainant with their decision on each complaint (Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).
• Stage 3: A review panel considers the complaint. The panel must consist of three independent people. Following the panel, the members write a report containing a brief summary of the representations and their recommendations for resolution of the issues (The Children Act 1989 Representations Procedure (England) Regulations 2006 19(2)).
• The council must send its response to the panel’s recommendations to the complainant within 15 days of receiving the panel’s report. The response should set out how the council will respond to the recommendations and what action it will take. If the council deviates from the panel’s recommendations it should explain its reasoning in the response (Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).
12. Unless there is evidence of fault in the investigation process, the Ombudsman will not usually re-investigate a complaint which has been through the full procedure. This is because a properly conducted investigation is independent and robust.
13. The regulations specify the IO appointed by the Council should be independent. They may be an employee of the Council but should have not been involved with the subject matter of the complaint. To ensure impartiality, the process is also overseen by an IP, who is neither an elected member nor an employee. The Ombudsman would therefore rely on the findings made unless we find flaws in the process.

Background of key events

14. Miss Y has two children currently aged 11 and 5 years old. The oldest child is a boy, who I will call C. The youngest is a girl, who I will call D.
15. When C was seven years old the Council received a referral from his primary school to seek early help for Miss Y due to C’s escalating behaviour. Two months later, C’s school made a second referral following a disclosure made by C regarding domestic violence in the family home.
16. The Council then received several other referrals throughout June and July 2017 due to concerns about C being outside of the family home, on his own.
17. The Council decided to hold a Strategy Meeting and an Initial Child Protection Conference (ICPC) and both C and D became subject to Child Protection (CP) plans on 24 July 2017.

The complaint investigation

Stage 1

18. Miss Y complained to the Council in April 2019 and raised the following concerns:
• She was unable to apply for respite or a ‘parent/carer break grant’ due to the ongoing involvement of social services. Miss Y complained this was unfair.
• She was unable to access the necessary support for C and D due to the ongoing involvement of social services.
• C’s assessment for Autism was subject to unacceptable delay, and the nearest clinic is in an area unknown to them both.
• The Council have not completed a carer’s assessment for Miss Y.
19. The Council met with Miss Y and provided a written response on 22 May 2019. In summary, the Council:
• acknowledged Miss Y’s frustrations and could not explain why its policy about grants excluded applications from those with social services involvement.
• apologised for not referring C’s case to the Children with Disability team (CWD) sooner for assessment.
• apologised for the referral being made on the incorrect forms, and that the social worker did not visit on time which in turn upset C.
• apologised for visits not taking place every ten days during the time C and D were subject to CP plans.
• agreed the following work needed to take place:
1. C to receive an Autism assessment as soon as possible
2. Miss Y to receive respite support
3. Arrange childcare for D and any extra time to be funded
4. Funding for C to attend a club during Saturdays and school holidays
5. Arrange other activities for C to attend during school holidays
6. Continue to offer support to D for speech and language if needed
7. Referral to CWD to be followed up and discussion about what they can offer
8. Referral from the hospital to be shared with Miss Y
9. C’s EHCP to be reviewed
10. Private 1:1 swimming lessons to be arranged for C
11. Allocate a new social worker and family support worker
20. Dissatisfied with the response, Miss Y met with an IO in August 2019 and agreed a statement of complaint for investigation at the second stage of the statutory process. I will summarise the IO’s findings in the section below.

Stage 2: upheld complaints

21. Complaint 1a. The Council did not communicate properly regarding the process to be followed after the referral it received about C. The IO upheld the complaint because they found nothing in the Council’s case records to indicate the social worker explained the assessment process to Miss Y.
22. Complaint 1b. The Council failed to advise of the steps in the assessment process. The IO upheld the complaint because they found nothing in the Council’s case records to indicate the social worker explained the next steps in the assessment process to Miss Y.
23. Complaint 1e. The Council did not make statutory visits as required by C and D’s CP plans. The IO upheld the complaint because the case files do not indicate that visits happened every ten working days whilst C and D were subject to CP plans.
24. Complaint 1f. The Council did not consistently share copies of Core Group minutes. The IO upheld this complaint because Core Groups were not consistently held.

Stage 2: not upheld complaints

25. Complaint 1c. The Council failed to discuss the contents of the completed assessment. The IO did not uphold this complaint because they found a case record dated 27 July 2017 which indicated the social worker visited Miss Y with the assessment document to discuss its contents.

Stage 2: partial or inconclusive findings

26. Complaint 1d. The Council did not adhere to C and D’s CP plans. The IO partially upheld this complaint because some of the CP plan actions did not materialise due to the services being unwilling or unable to offer provision. In some cases, actions were not completed within the necessary timescales.
27. The IO was unable to reach a finding for the following four complaints:
• Complaint 2a. The social worker did not know what a carer’s assessment was and failed to complete one for Miss Y.
• Complaint 2b. The social worker lacked understanding about short breaks and did not offer any.
• Complaint 2c. The social worker did not inform Miss Y of the real reason for visiting a residential children’s home.
• Complaint 2d. The social worker spoke to the Child and Adolescent Mental Health Service (CAMHS) about a S20 agreement without Miss Y present and without her knowledge or consent.
28. The social worker in question left the employment of the Council, and so the IO was unable to conduct an interview. The IO explained in their report that it was not possible to form a conclusion using the case files alone.
29. The IP concurred with the IO’s findings and noted the S2 report was “impartial, accurate and professional”.

Stage two: recommendations

30. The IO made the following recommendations of the Council to remedy Miss Y’s complaint:
• apologise to Miss Y for the failures identified.
• ensure that all contact with service users is fully and clearly recorded, including clear documentation of communication, actions taken and decision making.
• ensure that direct support is provided to families being supported by a social worker if one of the children has special educational needs. The support should be forthcoming without a formal request, and from those with expertise in educational psychology or children’s disabilities.
• remind social workers about the need to explain processes to service users, and where available share leaflets about the process to be followed in their case.

Adjudication and Stage 3

31. The adjudication letter issued to Miss Y following the S2 findings concurred with the conclusions and offered an apology for the injustice caused to Miss Y and her family. The letter also explained the service area would hold a “debrief” meeting to remind colleagues of the importance of clear record keeping and communicating with families about the process they are entering.
32. The Council also confirmed it now has psychologists based within front-line teams to ensure families receive support as necessary.
33. Miss Y remained dissatisfied, so she asked for her complaint to be escalated to the third stage of the statutory process. The S3 panel met on 10 February 2020. The notes show that Miss Y discussed the complaint findings she disagreed with. Having considered Miss Y’s views, the panel made the following findings:
• amended the finding of complaint 2a to partly upheld. This is because the panel considered the Council should have been pre-emptive of advising Miss Y about a carer’s assessment, irrespective of whether she requested one. The panel felt the Council should have clearly demonstrated in its records what advice and guidance it had shared with Miss Y.
• the Council should prioritise the carer’s assessment which should begin within one calendar month of the panel’s letter.
• the Council should extend their full and formal apologies to Miss Y for all areas of fault identified.
• the Council should review the advice and training it provides to new and existing social workers about carer’s assessments.
• the Council should consider introducing an information leaflet to assist parents and carers in understanding and exercising their rights regarding carer’s assessments.
• the Council should remind staff of the importance of creating records in a timely way.
34. The final adjudication issued by the Council following the S3 panel concurred with the panel’s findings, issued a further apology and made the additional recommendations:
• £150 to be paid in recognition of Miss Y’s time and trouble in complaining
• £300 to be paid in recognition of the Council’s contribution to the anxieties around Miss Y’s vulnerabilities and personal history.
• £150 in recognition of the delay in responding to Miss Y’s complaint.
• £200 in recognition of the delay in arranging respite for C during the school holidays.
35. Miss Y chose not to accept the remedy proposed by the Council and approached the Ombudsman for an impartial review of her complaint.

The Ombudsman’s analysis

36. As the first section of this statement sets out, it is not our role to reinvestigate matters which have already been subject to a properly conducted and independent investigation. To do so would not be a good use of public resources. Instead, our role is to consider the following:
1. Was the investigation properly conducted and are the conclusions evidence based. If not, would the Ombudsman reach a different view based on the information available to us?
2. Did the Council offer a proportionate remedy for the injustice caused by fault? If not, would the Ombudsman recommend any further remedial action?
3. Has the Council fully implemented any agreed remedy? If not, has the delay caused any further injustice to the complainant?
37. Firstly, I have considered whether there was fault in the investigation process which undermines any conclusions reached. I note the timescales of the investigation were not in accordance with the regulations, thus causing some delay and frustration for Miss Y. However, the Council has already acknowledged this and offered a £150 payment in recognition of the delay. I consider this is a proportionate remedy and in line with our own guidance.
38. I have also considered the IO’s inability to interview all key people, such as social workers who have since left the Council’s employment. This was unfortunate because it meant the Council could not reach conclusions on all parts of Miss Y’s complaint. However, the inability to interview those people was outside of the Council’s control and is not fault. I am satisfied the notes of the S3 panel show that complaint two was thoroughly considered, which resulted in one of the findings being changed to partially upheld.
39. Overall, other than the delay already noted, I am satisfied with the conduct of the investigation, and I have not re-investigated the remaining points of complaint which Miss Y disagrees with.
40. Secondly, I have considered the remedy proposed by the Council. The remedy was significant; it included an apology, service improvements, better guidance for parents and carers and a financial sum in recognition of the family’s personal injustice. I understand from speaking with Miss Y that her primary concern was to ensure that C receives appropriate support. I note from January 2020 C has received increased support because he now attends a specialist school, receives daily support from an agency and has support after school and during holidays.
41. I understand C’s eligibility for services through the CWD team was hindered by the delay in his Autism diagnosis. C’s diagnosis would be made by the relevant health authority, not the Council. Therefore, the timescales of the diagnosis would have been outside of the Council’s control. With that said, the Council has acknowledged it should have done more to guide and support Miss Y throughout the process.
42. I have considered whether £200 is a suitable personal remedy for the injustice caused to C by delay in sourcing provision for him during school holidays. The delay also impacted on Miss Y and D because they were affected by C not being able to access services. Although the Council cannot be held responsible for C’s delayed diagnosis, its inaction in assisting the family created significant injustice and I consider the Council should do more to recognise this.
43. In response to Miss Y’s first complaint, the Council made a commitment in May 2019 to fund 1:1 private swimming lessons for C. Miss Y says this has not happened and the Council has not explained why. In my view, the Council should now arrange for C to receive the lessons previously agreed to fully remedy the injustice he experienced. It should also pay an additional £200 to Miss Y and her family to fully acknowledge the impact caused by the delay in securing provision.
44. Thirdly, I have considered whether the remedy proposed by the Council has been fully implemented. I am satisfied, based on the Council’s response to my enquiries, that it has undertaken the service improvements referred to during the complaint investigation. I am also satisfied the Council has now arranged provision for C.
45. The Council has also completed a carer’s assessment for Miss Y; however, this was subject to delay which the Council has already apologised for. As the assessment did not conclude that Miss Y was eligible for any provision, I am not persuaded the delay caused injustice beyond frustration and time and trouble. The apology already provided is therefore a suitable remedy for the Council’s delay.
46. However, I have not had sight of the written guidance produced for parents and carers. The Council should provide evidence of this to the Ombudsman so that we can be satisfied it has now completed all parts of the agreed remedy.

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Agreed action

47. Within four weeks of my final decision, the Council will:
• Confirm with Miss Y whether she would like to receive swimming lessons for C. If so, the Council should arrange to fund the lessons for the duration and frequency it agreed in May 2019. If Miss Y no longer wishes to receive the swimming lessons, the Council should agree an equivalent alternative for C;
• In addition to the £800 already proposed, the Council will pay a further £200 to fully recognise the impact of the delay in arranging C’s respite during school holidays; and
• Provide evidence to the Ombudsman of the written leaflets/guidance/information it has produced for families following the S3 panel’s recommendations.

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Final decision

48. We have completed our investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions we have recommended are an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman