Summary: Ms X complains the Council failed to provide information about the threshold for a child in need assessment and has not been clear in its decision making about support for her child. Ms X also complains the Council failed to consider her complaint under stage two. The Ombudsman finds fault with the Council for failing to carry out its duty under the statutory complaints process. The Council has agreed to commission a stage two investigation and pay Ms X a financial remedy in recognition of the distress caused.

The complaint

1. Ms X complains the Council failed to provide information about its threshold for support for disabled children and Child In Need assessments.
2. Ms X complains there is no clear information available to Council residents about what services disabled children can access.
3. Ms X complains the Council has not been clear in its decision making and reasoning for refusing her child support.

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The Ombudsman’s role and powers

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 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

6. I considered Ms X’s complaint and the information she provided. I also considered information from the Council.
7. I considered comments from Ms X and the Council on a draft of my decision.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Legislation and guidance

Statutory complaints process

9. 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.
10. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
11. 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.
12. 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.

No reinvestigation if process complete and not flawed

13. 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.

Refusing to investigate due to legal or court proceedings

14. Councils can refuse to consider a complaint if a complainant says they intend to take legal action or if investigating a complaint could prejudice concurrent court proceedings. However, after the proceedings have ended, a complainant can resubmit the complaint for the council to consider.

Early referrals to the LGSCO

15. The Ombudsman would normally expect a council and complainant to follow the full complaints procedure. The guidance sets out the circumstances in which a complaint can be referred to the Ombudsman without completing all three stages. This can only happen when the stage two investigation is robust with all complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.

What happened

16. Ms X has two children, Child Y and Child Z. Child Y has autism and attends a specialist provision for this.
17. Child Y’s provision made a referral to the Council. The provision was concerned that although Child Y was managing whilst at the provision, there were multiple issues at home for which the whole family needed support. The referral requested support for the family, therapy for Child Y or a direct budget for this.
18. When the Council first screened the referral, it told Child Y’s provision that a child and family assessment was not needed. It said school could provide further behavioural strategies and the Council would signpost to other support.
19. Ms X wrote to the Council and asked for clarification on the decision. She said that as Child Y had autism, he met the criteria for a section 17 assessment as he was a "Child In Need”. She asked the Children with Disabilities team carry out the assessment.
20. The Council responded to Ms X’s concerns and said it would send the case to its Initial Response Team for a child and family assessment.
21. A child and family assessment was conducted by the Initial Response Team and the outcome was that Child Y should be placed on a child in need plan.
22. Ms X complained to the Council about its decision to not have the Children with Disabilities team conduct an assessment. She also said the Council had not provided information about the threshold for an assessment by this team.
23. The Council considered Ms X’s complaint at stage one. It did not uphold Ms X’s complaint the Council had not communicated about the threshold for an assessment and refused support Child Y was entitled to.
24. Ms X remained unhappy with the Council’s response and asked to escalate her complaint to stage two.
25. The Council refused to consider Ms X’s complaint at stage two as it felt nothing further could be achieved and that it did not uphold her complaint.
26. Ms X remained unhappy and bought her complaint to the Ombudsman.

Analysis

Statutory complaints process

27. The government issued guidance for Councils when completing the statutory complaints process.
28. This guidance clearly sets out that “A stage two commences either when the complainant requests it or where the complainant and the local authority have agreed the stage one is not appropriate”.
29. The Council has outright refused to consider Ms X’s complaint under the statutory complaints process with no clear rationale for this. This was fault by the Council and has caused Ms X distress and delay.
30. The Ombudsman does have a process to allow premature referrals for complaints that have completed the stage two process. The Council cannot offload its statutory responsibility to complete the complaints process to the Ombudsman.
31. The Councils failure to carry out a stage two investigation when requested as meant it has failed to carry out its statutory duty to consider Ms X’s complaint under the correct process. The Council is best placed to investigate a complaint and address any injustice caused.
32. I am therefore recommending the Council carry out its duty to investigate the complaint under the stage two of the statutory complaints process.

Additional parts of Ms X’s complaint

33. Ms X’s complaint centres around the Councils decision not to assess Child Y under the Children with Disabilities team. As the Council has not completed the statutory complaints process, I cannot yet consider these parts of Ms X’s complaint.
34. If, once the statutory complaints process has been completed, Ms X remains unhappy with the outcomes, Ms X can bring her complaint back to the Ombudsman.

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Agreed action

35. Within 4 weeks the Council has agreed to

• Write to Ms X and apologise for the fault identified
• Pay Ms X £250 in recognition of the time and trouble and distress caused by failing to follow the statutory complaints process.
• Commission a stage 2 investigation under the statutory complaints procedure.
• Review how it ensures the Council is complying with the statutory complaints procedure where a stage two is requested.

36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have now completed my investigation. I find fault with the Council for failing to follow the statutory complaints procedure.

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Investigator's decision on behalf of the Ombudsman