Summary: Mr X complains that the Council has not implemented the recommendations of the stage two investigation and review panel. The Council has not properly implemented a recommendation of the review panel. The Council has agreed to apologise to Mr X and offer a further opportunity for mediation. The Council will make service improvements.

The complaint

1. Mr X complains that the Council has failed to implement the recommendations of the stage two independent investigation and stage three review panel which found he had been discriminated against on grounds of his sex and his son had been discriminated against on the grounds of his disability. Mr X considers this shows the Council is continuing to discriminate against him and is victimising him.

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The Ombudsman’s role and powers

2. 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)
3. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.(Local Government Act 1974, section 24A(6))

4. If we are satisfied with an organisation’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

5. I have:

• Considered the complaint and the information provided by Mr X;
• Discussed the issues with Mr X;
• Made enquiries of the Council and considered the information provided;
• Invited Mr X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Statutory complaints procedure

6. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.
7. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
8. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
9. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.

The Ombudsman’s approach

10. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation and review panel.

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What happened

11. The following are a summary of the key facts relevant to my consideration of the complaint. They do not include everything that has happened.
12. Mr X has three children. One of his children, Y, receives support from the Council’s disabled children’s team and is a child in need in accordance with section 17 of the Children Act 1989. Mr X was Y’s main carer until he suffered significant ill health. Mr X and his wife later separated.
13. In late 2018 Mr X made a complaint to the Council which raised a number of issues. These included social workers not consulting him about decisions for Y despite Mr X having parental responsibility. They also included the Council no longer considering his son to be a child in need. Mr X considered the Council’s actions constituted gender and disability discrimination.
14. In February 2019 the Council decided to consider the complaint at stage two of the statutory complaints procedure. It appointed an independent investigator and independent person to carry out the investigation. The independent investigator issued their report in September 2019 and the independent person issued their report in November 2019. The stage two investigation upheld Mr X’s complaints about discrimination as it found the Council had failed to consult Mr X about when carrying out assessments and making decisions about Y and failed to record he had parental responsibility for Y. The investigation found the Council had wrongly considered and notified Mr X that Y was not a child in need. The investigation also partially upheld Mr X’s other complaints including delay in the complaints process.
15. The stage two investigation made a number of recommendations for the Council to ensure the Council recorded parental responsibility and staff were trained in the importance of parental responsibility.
16. The Council upheld the findings of the stage two investigation and recommended a number of actions.
17. Mr X was unhappy with some of the findings from the stage two investigation. He requested his complaint be escalated to the stage three review panel in February 2020.
18. The stage thee review panel was held remotely in early October 2020 and Mr X joined the hearing. The panel considered the stage two findings disputed by Mr X and upheld his complaint about delay in the complaints process. The panel acknowledged Mr X had been through a stressful situation and difficult times. Its recommendations included that the Council discuss with Mr X what restorative practices may be of benefit to him and the Council to promote a more positive working relationship including the possibility of mediation between Mr X and a senior officer.
19. The review panel also made recommendations in respect of its practice in archiving previous versions of its polices, review whether senior managers are compliant with the Council’s social media policy, a proactive and managed strategic approach to communication is put into place with service users who require more support than the norm and staff in all levels have opportunities to gain a better understanding of service users journey through services. The Council accepted the recommendations.
20. In 2021 the Council arranged for an independent mediator to contact Mr X to arrange mediation between him and the Council. The mediator initially told Mr X that the focus of the mediation would be to promote a more positive working relationship and to support him with Y’s Education, Health and Care Plan (EHCP). Mr X explained the recommendation for mediation arose from the review panel and he considered it should not include Y’s EHCP as he was already engaged in mediation as part of the process of appealing Y’s EHCP. In further correspondence with the mediator Mr X again expressed concern about Y’s EHCP being included and a member of the special education team being involved when his complaint was about social care. Mr X then withdrew from mediation as he considered the Council had failed to act in the spirit of the review panel’s recommendations and it was continuing to discriminate against him and his son. Mr X also highlighted the stress caused to him by the Council’s actions and the impact on his health.
21. In response to my enquiries the Council has said:

• The key services working with Mr X and his son were children’s services and the special educational needs (SEND) service. The Council felt it was important both services were involved in mediation to build a positive working relationship.
• It considered mediation was the best practical approach to building a positive working relationship. It has not had further discussions with Mr X about whether other restorative practices may be of benefit.
• It has updated the short break statement to ensure assessments are discussed with both parents and views recorded. It is not able to amend its IT system.
• It has carried out legal training in relation to parental responsibility to ensure it is clearly understood by staff. Discussions about parental responsibility have also been held in team meetings and in learning from local safeguarding practice review.
• It has carried out audits of records in January 2020 and October 2021 to check if staff are recording parental responsibility and involving fathers in assessments.
• The Council is also developing practice standards and involving fathers in this work.

22. Mr X considers the Council is still discriminating against him which is causing significant distress to him

Analysis

23. I have not reinvestigated Mr X’s complaint of gender and disability discrimination by the Council. This is because Mr X’s complaint has been considered through the children’s services statutory complaints procedure which is an independent and detailed process. We will only reinvestigate the complaint if there are significant flaws in the way the complaint was investigated.
24. There is no evidence of significant flaws in the investigation of Mr X’s complaint. I acknowledge Mr X considers the stage two investigator should have interviewing senior officers. But the reports of the independent investigator and independent person are comprehensive and the review panel considered Mr X’s disagreement with the stage two investigation findings. I therefore do not consider the investigations to be flawed and I do have grounds to reinvestigate Mr X’s complaint. I also could not add any value in doing so.
25. The review panel found delay in the stage two investigation and in holding the review panel. The stage two investigation greatly exceeded the timescales set out in the statutory guidance. The Council took several months to arrange the stage three review panel. Some delay in arranging this was caused by the COVID-19 pandemic which inevitably caused disruption to services. The delay did not flaw the investigations which were comprehensive. But the delays caused distress to Mr X. The Council offered an appropriate remedy to Mr X in response to the findings of the review panel. It would therefore not be proportionate to recommend a further remedy for the distress caused to Mr X by the delays in the statutory complaint process. It would also not be proportionate for me to investigate the cause of the delays any further.
26. The Council has reviewed its complaint handling procedures during 2020/21 to address such delays.
27. I find, on balance, the Council has not implemented the review panel recommendation for restorative practice, such as mediation. The Council is not at fault for initially suggesting the involvement of the SEND service in the mediation as this would meet the aim to build positive relationships in the key services supporting Y. It was also separable from the mediation process Mr X was undertaking as part of this appeal to the SEND Tribunal. But the Council should have withdrawn the inclusion of the SEND service when Mr X objected to its inclusion in order to agree a way forward and support Mr X in building a positive relationship with Children’s Services. This would also have implemented the recommendation of the review panel. Had the Council done so, I consider, on balance, Mr X would have agreed to the mediation. The Council has also acknowledged it has not explored any other restorative practice with Mr X. So, on balance, I consider the Council has not properly implemented the recommendation of the review panel which has caused distress to Mr X. The Council should remedy this injustice.
28. Mr X has provided details of further complaints which he has made to the Council. I appreciate Mr X has provided these complaints to illustrate his concerns of continuing victimisation by the Council. But these are new matters and outside the scope of this investigation. We could only determine if the complaints showed fault and a pattern of actions which could demonstrate wider failings once we had investigated the specific complaints.
29. The Council has provided evidence to show it has implemented the recommended actions following the stage two investigation and the review panel. But the audit report of October 2021 shows the issues which arose in Mr X’s complaint are persisting and officers have not fully understood the learning from Mr X’s complaint. In this audit the Council found instances of social workers not recording the details of non-resident fathers on its case management system, not involving non-resident fathers in assessments and not sharing the outcomes with them. The Council’s action plan shows it would share the learning from the audit with staff. But it should further remind social workers and other relevant officers of the importance of involving non-resident fathers in assessments and decisions about their children. A continued failure to properly involve non-resident fathers shows the Council is not having sufficient regard to its duties under the Equality Act 2010.

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Agreed action

30. That the Council:
1. Sends a written apology to Mr X for the distress caused by the Council’s failure to properly implement the review panel’s recommendation for restorative practice such as mediation.
2. Offers Mr X a further opportunity for mediation to be facilitated by an independent mediator. The aim of the mediation should be to build a positive working relationship between Mr X and Children’s Services. If mediation is not possible then the Council should discuss with Mr X what other restorative practice would be appropriate.
3. By training or other means, reminds social workers and other relevant staff of their duties under the Equality Act 2010 and the importance of recording the details of non-resident fathers, including them in assessments and sharing the outcome with them.
31. The Council should take the action at recommendation a) to c) within one month of my final decision.

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Final decision

32. Fault causing injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman