Decision : Upheld
Decision date : 14 Jun 2022
The Ombudsman's final decision:
Summary: Mrs A complained on behalf of Mrs X that the Council did not keep her informed of the actions it took following an investigation into Mrs X’s complaint about Children’s Services. Mrs A says the Council did not provide Mrs X with an update as agreed and says the Council’s actions have caused Mrs X avoidable distress. We found fault by the Council in this matter. The Council has agreed to apologise to Mrs X, carry out a review of its processes and make a payment to Mrs X to recognise the injustice caused.
- Mrs A complained on behalf of Mrs X that the Council did not keep her informed of its actions following an investigation into Mrs X’s complaint about its Children’s Services. Mrs X had previously complained about the Council’s decision not to carry out an assessment for her disabled child. This complaint was considered at stage two of the children’s statutory complaints process.
- Mrs A says the Council agreed to carry out the actions recommended in the Investigating Officer’s report following the stage two investigation and agreed to update Mrs X about this.
- Mrs A says the Council did not provide Mrs X with an update and says the Council’s actions caused Mrs X avoidable distress. Mrs X would like the Council to provide her with an update of the actions it has taken as a result of the service improvements identified in the Investigating Officer’s report.
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)
- 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)
- 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.
How I considered this complaint
- I discussed the complaint with Mr and Mrs X and their representative, Mrs A, and considered the information they provided.
- I made enquiries to the Council and considered the information it provided.
- I also considered the statutory guidance ‘Getting the Best from Complaints’ and our guidance ‘Children’s statutory complaints process, Guide for practitioners' published in March 2021.
- Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.
What I found
Children’s social care statutory complaints procedure
- 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 Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review panel to be held.
- If a council has investigated something under this procedure, we 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.
- Mr and Mrs X have a disabled child, Child B. Mrs X asked the Council in 2017 to assess Child B for their eligibility to services which could provide support for them. Mr and Mrs X asked the Council again in January, September and October 2020 to assess Child B for this purpose. The Council told Mrs X that Child B was not eligible for an assessment because its Early Help Team were involved with the family.
- In October 2020, Mrs A complained on behalf of Mrs X about the Council’s decision that Child B was not eligible for an assessment. She said there was no clear accountability as to how the Council made its decisions and said the Council had not provided details of the correct person with whom to discuss the matter.
- The Council considered the complaint via its corporate complaint procedure and replied to Mrs X on 20 November 2020. It set out the reasons why it considered the threshold for the provision of services from its Disabled Children’s Team (DCT) was not met in relation to the requests made in 2017 and January 2019. However, the Council said a child and family assessment should have taken place following the request made in September 2020.
- The Council said it allocated a social worker to the family after the final request in October 2020 and said it had started its assessment of Child B. The Council apologised for not providing Mrs X with details of someone with whom she could discuss the Council’s decision and upheld this aspect of the complaint. The Council partially upheld Mrs X’s complaint about its decision not to provide an assessment.
- In December 2020, Mrs A asked the Council to escalate Mrs X’s complaint to stage two. The Council offered to meet with Mrs X to discuss the matter and arranged an online meeting in January 2021.
- Following the meeting on 8 January 2021, the Council considered Mrs X’s complaint via the statutory complaints procedure. It provided its stage one response via this process on 20 January 2021.
- The Council said it considered the initial referrals which led to support from an Early Help Assessment were appropriate. However, it acknowledged it should have completed an assessment to identify appropriate services from the DCT at an earlier stage. The Council apologised and said it was working with its Multi-Agency Safeguarding Hub (MASH) and its team managers to improve its response to referrals.
- Mrs X was dissatisfied with the response and asked the Council to escalate her complaint to stage two on 20 February 2021.
- Mrs X says the Council offered to pay £600 as a resolution to the complaint in March 2021. She says she rejected the offer and asked for her complaint to be considered at stage two.
- On 15 March 2021, the Council confirmed it was proceeding with its stage two investigation.
- On 30 March 2021, Mr and Mrs X attended an online meeting with the stage two Independent Investigator and the Independent Person.
- On 25 June 2021, the Independent Investigator produced their report which set out in detail the investigation of Mrs X’s complaints. Mrs X complained:
- The Council failed to meet its statutory duty to a disabled child by refusing to provide appropriate support prior to her formal complaint;
- The Council refused to provide a rationale for its decision not to assess Child B, and did not provide a written explanation why it considered Child B did not meet the criteria for assessment;
- The social worker appointed to Child B lacked understanding of Child B’s disability;
- The Council did not provide Mrs X with the contact details of its officers when requested;
- The Council failed to provide an assessment by an agreed date;
- The referral process between the MASH and the DCT was not fit for purpose;
- The DCT lacked transparency with parents regarding the appeals process where the DCT refused referrals to its service;
- The Council did not copy Mrs X’s advocate into all written communication, and also sent correspondence to her advocate without copying in Mrs X, and
- The Council caused unreasonable delay in progressing Mrs X’s complaint to stage two of the statutory process.
- The Independent Investigator partially upheld complaint two and did not uphold complaint eight. The Investigator upheld all of Mrs X’s remaining complaints and gave the reasons for their decision.
- The report set out Mrs X’s desired outcomes from the investigation. These were:
- For the Council to provide an apology;
- For the Council to backdate Direct Payments to the point where Child B would have been eligible had the DCT carried out an assessment;
- For the Council to improve its referral process so other parents would not be obstructed from contacting the correct officers within the service;
- For the Council to make public the DCT’s threshold criteria, to ensure the criteria is open and transparent, and for the Council to give clear reasons for its decisions to refuse a referral;
- For the Council to ensure the appeal process following a refusal of a referral by the DCT is open and transparent, and
- For the DCT to ensure social workers allocated to assess the needs of disabled children have some knowledge regarding disabilities.
- The Independent Investigator has set out in detail their findings and has upheld the majority of Mrs X’s complaints. Therefore, I have not further investigated the actions which led to the complaint about the Council’s decision not to carry out an assessment for Child B. This is because it is unlikely that we could add to the previous investigation.
- The Council has itself identified failings in how it dealt with Child B’s case as part of its review of Mrs X’s complaints. It says it has taken action to address some of the faults identified and has carried out a review of the referral process between the MASH and the DCT. The Council says it has also carried out a review of the wider decision-making process, and this review is ongoing.
- However, Mrs X says the Council failed to provide her with an update regarding these actions, as agreed following the stage two investigation.
- The Council told Mrs X it would provide her with an update by 3 October 2021. However, I have seen no evidence the Council provided an update to Mrs X regarding this matter. As a result, the Council is at fault for failing to provide an update as agreed.
The Council’s consideration of Mrs X’s complaint
- Mr and Mrs X say they remained dissatisfied with the outcome of the stage two process as they did not receive an update as agreed. The evidence shows Mrs A told the Council Mr and Mrs X would consider their complaint to be closed once they had received confirmation the Council had completed the agreed actions. This demonstrates the Council were aware that Mr and Mrs X would remain unhappy with the outcome of the stage two investigation until this update was received.
- As stated at paragraph 11, the children’s social care statutory complaints procedure is a three-stage process. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review panel to be held. Mr and Mrs X say the Council did not tell them they could request a stage three review panel, and I have seen no evidence to indicate the Council informed them of this process. The Council’s failure to inform Mr and Mrs X of their right to request a stage three panel review in line with the statutory process is fault.
The Council’s review of its referral process following the stage two investigation
- Mr and Mrs X say they believe the Council may not have carried out the recommendations of the stage two report as agreed, including the review of the referral process between the MASH and the DCT. Mr and Mrs X say their ongoing interaction with the Council indicates nothing has changed.
- The Council says it has begun to review the operating model within the MASH, including a peer review by another local authority in January 2022. The Council says this review is ongoing and says it is implementing changes as a result of the review’s recommendations. The Council says the review has not specifically considered referrals to the DCT, but says the recommendations are relevant to all children for whom it receives referrals.
- The Council says it has reviewed the referral process between the MASH and the DCT and has decided to retain the existing process for the time being. It says all referrals are sent to the DCT as part of a consultation process, and that all decisions are shared with the MASH. The Council says all referrals for the DCT will be considered by a MASH decision-maker and the DCT rather than being passed to Early Help co-ordinators.
- The Council says it is unable to provide evidence of the review process as outlined above because the review was a discussion between managers and there are no formal minutes of the meeting. The Council says there have been no further concerns identified and it considers the process is working well. The Council says it considers the liaison between the MASH and the DCT remains the most collaborative and informed way to make decisions about referrals for assessment from the DCT.
- I acknowledge the Council’s comments regarding continued liaison between the MASH and the DCT. However, the stage two investigation upheld Mr and Mrs X’s complaint that the current referral process between the MASH and the DCT was not effective. The Council agreed with the findings of the investigation regarding this matter and agreed to carry out a review of the process as a result.
- I acknowledge the Council says it has carried out this review. However, it is unable to provide any evidence to support this. In addition, the Council has not provided any evidence to demonstrate how it made its decision to retain the existing process, given its prior agreement that this was not effective.
- As part of maintaining an effective and robust administrative process, we would expect councils to keep records to demonstrate how they have considered changes to policy or procedures. This includes maintaining records to show how the Council considered the impact of such changes to service users. The Council’s failure to keep records to show how it carried out its review of the referral process and how it decided to retain the existing process, particularly when it previously agreed the current process was not effective, is fault.
The Council’s appeal process following a refusal of a referral by the DCT
- The Council says service users are advised to contact MASH if they have any concerns or wish to discuss matters further. It says if a service user remains unhappy, the Council advises them of the complaints process which is available online.
- The stage two investigation recommended the Council ensures the appeal process following a refusal of a referral by the DCT is open and transparent. I acknowledge the complaints procedure is available to the public. However, although the Council agreed to the recommendations, I have seen no evidence service users are advised they may use the complaint process if they are unhappy with an unsuccessful referral decision. As the Council agreed to ensure this process was open and transparent, I have found the lack of explanation regarding this matter to be fault.
- The Council has provided evidence the threshold criteria for the DCT is available online. It has also provided an explanation of the steps taken to ensure it handles complaints about children’s services appropriately via the statutory process. It is positive the Council has taken these steps, but these do not fully reflect the actions the Council agreed to undertake following the stage two investigation. As a result, and considering the fault previously referred to, I must consider whether this has caused Mrs X a significant injustice.
- Mr and Mrs X say they have had to spend a lot of time dealing with their complaint, and that they felt the Council was dismissive of their family’s needs. They say the process has been mentally and physically draining, and stressful for the whole family.
- I acknowledge the Council has already provided an apology regarding the fault identified by the stage two investigation and has already made a payment of £600. However, this does not fully address the injustice caused to Mr and Mrs X.
- To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
- Provide an apology to Mr and Mrs X for its failure to provide an update;
- Make a payment of £300 to Mr and Mrs X in recognition of the distress and uncertainty caused by the lack of an update, and
- Remind staff that where complaints are considered via the children’s statutory complaints process, parents are notified of their ability to request a stage three hearing where appropriate.
- Carry out a review of the referral process between the MASH and the DCT to examine ways to improve the existing process, in line with the agreed recommendations of the stage two report. The review process should be clearly documented with records kept of decisions and the rationale behind them. It should also include examining ways to improve communication with parents;
- Inform parents via its decision letters where appropriate, that the threshold criteria for the DCT is available online, and
- Notify parents via its decision letters where appropriate, that they can challenge unsuccessful referral requests via the complaints procedure.
- I have found fault by the Council and the Council has agreed to take the above action to resolve the complaint. I have therefore concluded my investigation.
Investigator's decision on behalf of the Ombudsman