Decision : Upheld
Decision date : 17 Feb 2022
The Ombudsman's final decision:
Summary: Ms X complained about errors and delays in the Council’s investigation of her complaint about Children’s services under the Children’s Statutory Complaints procedure. The Council was at fault. It has agreed to begin a stage 2 investigation and pay Ms X £200 in recognition of the frustration caused by poor communication and delay.
- Ms X complained about errors and delays in the Council’s investigation of her complaint about Children’s services under the Children’s Statutory Complaints procedure. She says due to the errors and poor communication, the Council has not yet started the stage 2 investigation and her complaint remains unresolved. She wants the Council to agree a complaint summary with her and start its stage 2 investigation into her complaint without further delay.
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 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)
- 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 read Ms X’s complaint and spoke with her about it on the phone.
- I considered information provided by the Council and Ms X.
- I considered the Children’s statutory complaint procedure statutory guidance Children's social care: getting the best from complaints.
- Ms X and the Council had the opportunity to comment on the draft decision. I considered comments received before making a final decision.
What I found
The children’s statutory complaints procedure
- There is a formal procedure, set out in law, which council must follow to investigate certain types of complaints. It involves three stages:
- Stage 1 - Local resolution by the Council (within 10 working days)
- Stage 2 – an investigation by an independent investigator who will prepare a detailed report and findings. The investigation is overseen by an independent person to ensure its impartiality. The Council then issues an adjudication letter which sets out its response to the findings (within 25 working days, or if needed, within an extended period of 65 working days).
- Stage 3 – an independent panel to consider their outstanding issues.
Early referral to the Ombudsman
- Councils should progress a complaint through at all three stages of the procedure, if this is the complainant’s wish. However, If the Council is in agreement and certain conditions are met, the complainant can make an early referral to us. The guidance says a Council can only consider this option once the Stage 2 investigation has concluded and the complainant has received the Council’s final position on the complaints. The conditions include that the Stage 2 investigation must have delivered:
- A very robust report;
- A complete adjudication;
- An outcome where all complaints have been upheld (or all significant complaints relating to service delivery).
- Ms X’s child, Y, has a health condition and Special Educational Needs (SEN). In October 2019, Ms X complained to the Council about several aspects of its children’s services. The Council accepted her complaint under stage 1 of the Children’s statutory complaints procedure.
- The Council responded to her complaint, but Ms X remained dissatisfied. She asked the Council to escalate her complaint to stage 2.
- The Council accepted her complaint at stage 2 in March 2020 and appointed an independent investigator and independent person to oversee the investigation. However, before the investigation could begin, it was put on hold due to the onset of the COVID-19 pandemic.
- Between August and October 2020, the Council re-opened the complaint and began making arrangements for the stage 2 investigation. In October, Ms X instructed a solicitor who wrote to the Council challenging parts of its decisions in relation to child protection procedures. The Council considered these legal challenges were interlinked with the complaint. It put the complaint on hold until it had completed its response to Ms X’s solicitor.
- By March 2021, the legal matters were concluded, and the Council re-started the stage 2 investigation. It appointed an independent investigating officer (IO) and an independent person (IP).
- Ms X met with the IO and the IP in April 2021 to discuss her complaint. The IO made notes from the meeting and proposed a statement of complaint. They sent this to Ms X to review.
- In June 2021, the IO amended the meeting notes after comments from Ms X. She asked Ms X to confirm again if she was now happy with them, asked Ms X some questions and asked her to provide some supporting evidence.
- At the end of June, the Council contacted Ms X. It said it had not heard from her and queried whether she wanted to progress her complaint. Ms X told the Council she had responded to the IO earlier that month, but in error, the email had not sent. She emailed the IO with further amendments to the meeting notes and some additional points of complaint.
- The IO acknowledged this email and said they would now consider the information received. Two weeks later, Ms X contacted the IO again to ask for an update. She said there had already been delays. She also asked the IO to add an additional point of complaint.
- The IO responded the same day and said they would add the additional point of complaint. However, they said they were still waiting for Ms X to sign the statement of complaint, before they could start the investigation. They said they had not yet received a signed statement or answers to the questions they had asked in June 2021 and could not proceed until these were received.
- Ms X said she did not feel the statement of complaint included all her points.
- The IO contacted her again asking her to check the complaint statement, sign it and send it back to them. Ms X responded to say she was still considering it and would need an updated statement once she had amended it.
- Ms X sent the IO the additional information they had requested.
- At the end of July 2021, Ms X sent the IO an amended statement of complaint included her additional points. She asks the IO to get back to her if they had any problems reading her amendments.
- The IO contacted the Council’s complaints team. They said they felt Ms X’s communications were excessive and disproportionate. They said they were aware it had been agreed Ms X could add some new issues for investigation at stage 2, but Ms X kept adding more and more things she wanted investigating.
- The Council complaints team wrote to Ms X. It asked her not to send in any new points of complaint so the investigation could begin and move forward. Ms X did not send any further correspondence to the IO after this point.
- At the end of September 2021, the Council’s complaints team wrote to Ms X. It said it had not received a response to its letter in July and neither the IO nor the IP had received a signed statement of complaint. On this basis, it said it assumed she no longer wanted to proceed with the complaint.
- Ms X responded and said when she sent the IO her amendments to the statement of complaint in July, she had told them she would need an updated statement to sign. She said she never received this and so did not have an accurate statement to sign. She said she was frustrated with the ongoing delays and because of this, intended to bring her complaint to the Ombudsman.
- The Council said it had not received a signed complaint statement and so had not been able to progress the investigation.
- Ms X was dissatisfied with the ongoing delay and brought her complaint to us. The Council supported this and told her it would comply with an Ombudsman investigation.
- Ms X told us that, as requested, she had not added any additional complaints after the complaints team contacted her at the end of July. She said by this stage, she was happy she had told the IO everything she wanted investigating and had awaited an updated statement of complaint that she could sign. She said the IO had never sent her an amended statement and this was why she had never returned one. She said she would agree to sign a complaint statement detailing her points of complaint up until July 2021, so a stage 2 investigation could begin.
- The criteria for making an early referral to us is clearly set out in the statutory guidance. The guidance says the Council must have completed a thorough and robust stage 2 investigation and upheld all or most of the substantial points of complaint. In this case, there has not yet been Stage 2 investigation. This case does not meet the conditions required for us to accept an early referral.
- There has been considerable delay in the statutory timescales. However, before July 2021, I am satisfied there were good reasons for the delays. The COVID-19 pandemic caused national disruption and affected many council services in 2020, and the Council had discretion to put the stage 2 on hold whilst it responded to Ms X’s legal challenge between October 2020 and February 2021. From March to July 2021, the IO met with Ms X and actively worked with her to try and finalise the complaint statement. There were some delays during this time, but nothing which would warrant a finding of fault.
- There was confusion and poor communication in July 2021. The IO told Ms X the stage 2 investigation could not begin until she sent them a signed complaint statement. However, the IO had agreed additional points of complaint, but never sent Ms X an updated version to sign. The Council asked Ms X to stop adding new complaints at the end of July, which Ms X agreed to. At this point, the IO should have sent Ms X an updated statement which included all the agreed points of complaint for Ms X to sign. They did not do this which was fault.
- Ms X told the Council in September 2021 that she had not received an updated statement and this is why she had not signed one. However, the Council’s position remained that as she had not sent a signed statement to the IO or IP, the investigation could not progress. The Council should have acted in October 2021 to resolve the issue. Instead, it acknowledged that Ms X had approached us and said it would comply with an Ombudsman investigation. The statutory guidance is clear that an early referral to us is not appropriate unless there has already been a full and robust stage 2 investigation. The Council’s decision to support an early referral to us was not in line with statutory guidance. This is fault and has caused further delay.
- The appropriate course of action is for Ms X to complete the statutory process. The Council’s actions since July 2021 have led to avoidable delay and caused Ms X frustration and time and trouble pursuing her complaint. The Council has now agreed action to remedy the injustice caused below.
- Within one month of the final decision, the Council has agreed to:
- start a stage 2 investigation and complete this in line with the statutory timescales. It should agree a complaint statement with Ms X based on the points of complaint agreed until July 2021. If Ms X remains dissatisfied after the stage 2 investigation and wants to escalate her complaint, it should progress the complaint to stage 3.
- pay Ms X £200 as acknowledgement of the distress caused by poor communication and delay since July 2021 and the time and trouble Ms X has spent pursuing her complaint.
- I have completed my investigation. I have found fault and the Council has agreed action to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman