Summary: Miss X complained that the Council did not implement recommendations made in response to her complaint about lack of support for her child. She also complained about delays handling her complaint. Miss X said this caused them both stress and distress, impacted on Miss X’s physical and mental health, and cost her time and trouble. The Council has reminded staff of the statutory guidance around timeframes in children’s complaints, and will make a payment to Miss X reflect the injustice caused.

The complaint

1. The complainant, who I refer to here as Miss X, complained that the Council has not implemented recommendations made during the statutory complaints procedure in response to her complaint about lack of support for her child. She also complained about delays handling her complaint.
2. Miss X said the lack of support caused prolonged, undue stress to her and her child. She said it has impacted on her mental and physical health, has caused distress, and cost her time and trouble.

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The Ombudsman’s role and powers

3. 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)
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)
5. 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.

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How I considered this complaint

6. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
7. I considered the relevant legislation, statutory guidance and policies, set out below. I considered the Ombudsman’s published guidance for practitioners on this subject, ‘Children’s statutory complaints process’, published March 2021. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

8. The government published statutory guidance, ‘Getting the Best from Complaints’, which sets out a three-stage procedure that councils follow when considering certain complaints about children’s social care services.
9. At stage one of the procedure, the council considers the complaint and should try and resolve the complaint as quickly as possible.
10. At stage two, the council appoints an independent Investigating Officer to investigate the complaint, and an Independent Person who is responsible for overseeing the investigation. The council will appoint a senior manager to adjudicate on the findings.
11. The guidance sets out timescales within which certain actions should be completed.
12. If the complaint is not resolved at stage one, or if parties agree, then the complaint should be investigated at stage two of the complaints process. The stage two ‘clock’ begins either when the complainant asks for it, or where parties agree that stage one is not appropriate.
13. The guidance says that a council has 25 working days to produce the Investigating Officer’s report and its own adjudication on the Investigating Officer’s findings. The guidance says this can be extended to 65 working days because in certain circumstances 25 working days may not be sufficient or practical.
14. The Investigating Officer’s report (stage two report) should include details of their findings and recommendations on how to remedy any injustice to the complainant.
15. The purpose of the council’s adjudication on the Investigating Officer’s report is to give its response, its decision on each point of the complaint, and to identify any action to be taken. The guidance says the Adjudicating Officer should make sure that any recommendations in the council’s adjudication response are implemented.
16. The complainant can then ask the council to convene an independent review panel. This forms the third stage of the complaints procedure. The review panel will consider the adequacy of the independent stage two investigation and will decide whether the complainant’s desired outcomes have been addressed.
17. The review panel should make recommendations that provide practical remedies and creative solutions to difficult situations. It should identify any injustice to the complainant where complaints have been upheld and recommend appropriate remedies. The panel should also recommend service improvements for the council, if appropriate.
18. After a stage two adjudication, a complaint can be further considered by early referral to the Ombudsman in a limited number of cases, instead of a stage three review panel. Certain criteria need to be met in order to do this.
19. The guidance places a duty on the council to act quickly throughout the procedure to make sure the complaint is dealt with as quickly as possible.
20. If a council has investigated a complaint under this statutory procedure, the Ombudsman does not normally re-investigate the original complaints unless we consider the investigation was flawed. Instead, we will look at whether a council properly considered the findings and recommendations of the independent investigation and review panel.

What happened

21. Miss X complained to the Council in September and October 2020 about lack of support for her daughter. The Council responded at stage one in November for both complaints.
22. In November, Miss X asked the Council to review her complaint at stage two of the statutory complaints process.
23. In January 2021, the Investigating Officer (‘the IO’) and the Independent Person (‘the IP’) agreed the terms of the complaint with Miss X.
24. In March, the IO submitted her report. She explained that the delays at stage two were due to COVID-19 and staff working from home. The IO upheld most of Miss X’s complaint and made recommendations to the Council.
25. The Council issued its stage two adjudication in April. The Council said it believed the stage two ‘clock’ had started when Miss X agreed the points of complaint with the IO in January. For this reason, it said its stage two adjudication was within the statutory timeframe (65 working days).
26. The next day, the Council sent an apology letter explaining how it had met, or would meet, the IO’s recommendations.
27. In June, Miss X asked the Council for stage three. The Council believed it met the criteria for early referral to the Ombudsman. It was then agreed that the Council should complete stage three.
28. In January 2022, the Council held the stage three review panel. The panel said the stage two adjudication had taken place just within the extended 65 days. The panel made recommendations. These recommendations included:
• the Council offering Miss X a carer’s assessment if and when a greater level of trust had been rebuilt;
• an apology for complaints the panel had newly upheld; and,
• a payment to reflect the distress caused to Miss X, and her time and trouble (the panel did not set out an amount but said it should be in line with the Ombudsman’s guidance on remedies).
29. The Council sent Miss X a letter apologising for the distress and inconvenience. It said it would arrange mediation and offered Miss X £200.
30. The Ombudsman then took up Miss X’s complaint.

Analysis

31. As I have said above, if a council has investigated a complaint under the statutory children’s complaints procedure, the Ombudsman does not normally re-investigate the original complaints unless we consider the investigation was flawed. Instead, we will look at whether a council properly considered the findings and recommendations of the independent investigation and review panel.
32. In this case, I consider the stage two investigation was thorough, well-balanced, and proportionate. I do not consider this investigation was flawed. For this reason, I have considered whether the Council properly considered the findings and recommendations of the independent investigation (stage two) and review panel (stage three).

Stage two:

33. I have considered the Investigating Officer’s (IO) findings and recommendations. I find that the Council properly considered all of the IO’s findings and has completed all of the recommendations.

Stage three:

34. I find the Council properly considered all of the stage three review panel’s findings. The Council has completed most of the stage three panel’s recommendations. However, some of the recommendations either have not yet been completed or are ongoing. Below I have summarised my findings on these specific recommendations:

Carer’s assessment

35. The stage three review panel recommended that the Council offer Miss X a carer’s assessment if and when a greater level of trust has been rebuilt.
36. There is ongoing mediation between Miss X and the Council. The Council says it wants to explore the offer of a carer’s assessment through the ongoing mediation.
37. The review panel was clear that trust had to be rebuilt between Miss X and the Council before the Council offers Miss X this assessment. As the trust has not yet been rebuilt to a sufficient level, I cannot find the Council at fault.

Apology

38. The Council told the Ombudsman it had hoped to apologise to Miss X face-to-face, through mediation, for the newly upheld complaints as the review panel recommended. As the Council had not been able to do this, it sent Miss X an apology letter in August 2022 (which I have seen).
39. I am satisfied that the Council has met this recommendation.

Payment

40. The stage three review panel recommended the Council make a payment to Miss X for distress and her time and trouble. The panel said this payment should be in line with the Ombudsman’s guidance on remedies.
41. The Council and the stage three panel were wrong to say the ‘clock’ for the stage two process started in January 2021 when Miss X agreed the points of complaint with the stage two Investigating Officer. The guidance is clear that the stage two ‘clock’ begins either when a complainant asks for it, or where parties agree that stage one is not appropriate.
42. In this case, Miss X asked for stage two in November 2020. The next day, the Council agreed to a stage two investigation. The Council sent its stage two adjudication in April 2021, 43 working days over the maximum 65 days set out in the guidance.
43. I bear in mind that the Council responded to Miss X’s second complaint in November, and added this complaint to the first complaint, so that both complaints were dealt with together at stage two.
44. The Council says the delay was due to initial difficulty appointing the Investigating Officer (IO) and Independent Person (IP). It says Miss X had reservations about the independence of the IO. It says it explored this with Miss X to her satisfaction. It says Miss X confirmed her consent to progress with stage two in January.
45. The Ombudsman’s guidance for practitioners on statutory children’s complaints (referred to above) says the guidance already allows for an extension of up to 65 working days. The Ombudsman’s guidance says:

“Therefore, councils should ensure the process of appointing independent investigators and independent people does not cause unnecessary delay, and that their reports are returned in time to complete the adjudication.”

46. I find there is nothing in the statutory guidance that says the stage two ‘clock’ can be delayed if a complainant has reservations, or for any other reason.
47. There was, therefore, a delay in completing stage two. This is fault. This caused injustice to Miss X. The stage three panel recommended the Council make a payment to reflect Miss X’s time and trouble given the delays.
48. The Council offered Miss X £200 to reflect her time and trouble, and her distress. The Council has not been able to explain how it arrived at this figure, or how the amount was in line with the Ombudsman’s guidance on remedies. The Council has asked for the Ombudsman’s view on an appropriate figure. I will discuss this below.

Council’s response to a draft of this decision

49. In response to a draft of this decision, the Council provided evidence to the Ombudsman to show it has reminded all relevant staff that statutory guidance says the stage two ‘clock’ starts either when the complainant asks for it, or where parties agree that stage one is not appropriate. The Council says it will also be arranging training for managers and team leaders which will include timescales for handling statutory children’s complaints. This is positive.
50. Given the action the Council has already taken, and is taking, to prevent something similar happening in future, I will not recommend any further service improvements.

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Agreed action

51. As above, the Council has asked for the Ombudsman’s view on an appropriate figure to meet the stage three review panel’s recommendation for a payment to reflect Miss X’s distress as well as her time and trouble. As these are separate injustices, the Ombudsman will propose a remedy for each part, as set out by the review panel.
52. Within four weeks of this decision, the Council has agreed to make a payment to Miss X of £400. This is made up as follows:
• £200 for Miss X’s distress: I have considered the factors set out in the Ombudsman’s guidance on remedies, and consider a payment in the mid-range to be appropriate; and,
• £200 for Miss X’s time and trouble: again, I have considered the factors set out in the Ombudsman’s guidance on remedies, including the length of the delay in completing stage two, and the fact that the country was in lockdowns from November 2020 to March 2021 due to COVID-19. Again, I consider a payment in the mid-range to be appropriate.
53. The Ombudsman will need to see evidence that this has been completed.

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Final decision

54. I have completed my investigation. The Council has agreed to provide a remedy which I find meets the stage three review panel’s recommendations.

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Investigator's decision on behalf of the Ombudsman