Summary: Mrs X complained that the Council refused to allow her child access to its disabled children’s team, and refused proper direct payments for her child’s carers. Mrs X said this caused her unnecessary stress, frustration, and cost time and trouble. We find the Council at fault for failing to deal with Mrs X’s complaint in line with the statutory complaints procedure. This caused injustice. The Council has agreed to apologise, take action it previously said it would take, and make improvements to its service.

The complaint

1. The complainant, who I refer to here as Mrs X, complained that the Council refused to allow her child access to its disabled children’s team, even though they have a disability. She also complained that the Council refused proper direct payments for her child’s carers, or paid them late.
2. Mrs X said this caused her unnecessary stress, frustration, and cost 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 significant injustice, or that could cause injustice to others in the future 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 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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How I considered this complaint

6. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs 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 and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies (updated).

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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 it 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.
11. The investigating officer’s report should include details of their findings, and recommendations on how to remedy any injustice to the complainant.
12. The council will appoint a senior manager to adjudicate on the findings. 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 (with timescales).
13. The guidance says the adjudicating officer should make sure that any recommendations in the council’s adjudication response are implemented. It says the complaints manager should monitor the implementation and report to the director on what action has been taken on a regular basis.
14. The complainant can then ask the council to convene an independent review panel. This is 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.
15. 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.
16. The council must then respond to the stage three panel’s findings and recommendations. The guidance says the council’s response should be written by a relevant director. The response should set out how the council will respond to the panel’s recommendations and say what action it will take. The guidance says if the director deviates from the panel’s recommendations, they should give their reasoning in the response.
17. The guidance sets out timeframes that each stage must be completed within.
18. 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

19. In November 2021, Mrs X complained to the Council that her child did not have access to its disabled children’s team. She also complained the Council was not paying proper direct payments.
20. The Council’s stage one complaint response did not uphold her complaint. Mrs X asked for stage two.
21. The investigating officer did not uphold Mrs X’s complaint at stage two. However, they did make three recommendations to the Council about completing assessments in good time when agreed funding is to end, and communicating decisions in good time. The investigating officer also recommended that the Council share their report with all the staff involved in the investigation.
22. The Council’s stage two adjudication agreed with the investigating officer’s findings, and did not uphold Mrs X’s complaint. The Council explained how it would meet the investigating officer’s three recommendations and set a timeframe for the actions.
23. Mrs X asked for stage three.
24. The stage three review panel agreed with the investigating officer, and did not uphold Mrs X’s complaint. The panel considered Mrs X’s three desired outcomes, and decided the Council should apologise to Mrs X for poor communication. The panel also made six recommendations to the Council. The panel found the stage two investigation was thorough and detailed.
25. The Council’s stage three adjudication addressed Mrs X’s three desired outcomes. It agreed with the panel that it should apologise to Mrs X, and apologised to her. The Council made a payment to Mrs X.
26. Mrs X then brought her complaint to the Ombudsman.

Analysis

27. As I have said above, if a council has investigated a complaint under the statutory procedure, we do 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.
28. I find the stage two investigation was well-balanced, proportionate, and thorough. For this reason, I have not re-investigated Mrs X’s original complaint. Instead, I have investigated whether the Council properly considered the findings and recommendations of the stage two investigation and the stage three review panel.
29. I find the Council met two of the three actions it said it would take in its stage two adjudication. In its stage two adjudication, the Council said it would:
• ask the district manager responsible for the allocated team responsible for Mrs X’s child to communicate decisions about funding to Mrs X, as soon as possible after being made, along with realistic timeframes for when payment will be received. This was to be communicated to the team and a note placed on the records within two weeks.
30. The Council says there is no evidence this action was completed. Without evidence, I cannot find that the Council completed this action. This is fault. The Council says it will rectify this. I do not find this fault caused injustice to Mrs X.
31. I find the Council apologised in line with the stage three panel’s consideration of Mrs X’s desired outcomes.
32. The stage three panel made six recommendations to the Council:
1. to commission an independent assessor to reassess Mrs X’s child;
2. to involve Mrs X when the Council’s policy is next reviewed;
3. to consider developing a process to make sure payments can be set up more easily;
4. to make a payment to Mrs X to put her back in the position she would have been if the Council had communicated better with her;
5. to make a payment to Mrs X because the stage two investigation had taken longer than it should have; and,
6. to send Mrs X contact details for the Council’s legal department to follow up for a claim for compensation if she wished to do so.
33. I find the Council met recommendations four and five with the payment made to Mrs X. I find the Council’s payment reflects the injustice caused and is in line with the Ombudsman’s published guidance on remedies.
34. Regarding recommendation one, the Council says it did not agree with this recommendation. It says the Director felt there was no merit in reassessing Mrs X’s child given the number of previous assessments which all had the same outcome.
35. Regarding recommendation two, the Council says it accepted this recommendation and will invite Mrs X to participate if it creates a working group in the next year. But it says it has no plans to create such a group.
36. Regarding recommendation three, the Council says it already has an improved system in place.
37. Regarding recommendation six, the Council says it did not feel it was necessary to share these contact details with Mrs X.
38. As I have said above, the guidance says a council’s response to the stage three panel should set out how it will respond to the panel’s recommendations, and say what action it will take.
39. I find the Director’s response to the stage three panel only addresses the panel’s findings on Mrs X’s three desired outcomes. The Council uses the heading ‘stage three complaint review panel recommendations’ and refers to the panel’s ‘recommendations’ but I find this is not accurate. I find the Council responded to what the panel called the “three actions arising from the Desired Outcomes”. The panel then made six recommendations on top of these three actions.
40. I find the Council’s response to the stage three panel’s findings did not respond to recommendations one, two, three, or six, made by the panel. This is fault. I have shared with Mrs X the Council’s response to the stage three panel (contained within its response to Ombudsman enquiries).
41. The Council says it did not agree with recommendations one or six. This is not in line with the guidance, which says if the director deviates from the panel’s recommendations, they should give their reasoning in the response. The Council’s response did not do this. This is fault.
42. I find the fault regarding recommendation one caused Mrs X injustice. The Council did not tell Mrs X in its response to the stage three panel that it would not commission an independent assessor to reassess her child. I find this caused distress because it caused Mrs X to have raised expectations.
43. I do not find the fault regarding recommendation six caused Mrs X any injustice, as the contact details for the Council’s legal department are available on the Council’s website.
44. I have also considered whether the Council completed the statutory complaints procedure within the timeframes set out in the guidance. The stage three review panel recognised that stage two was completed late. I find it was three months late. This is fault.
45. The panel recommended the Council make a payment to reflect Mrs X’s time and trouble (the injustice). I find the Council made a payment to remedy this injustice.

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Agreed action

46. Within four weeks of this decision, the Council has agreed to apologise to Mrs X for the distress caused by failing to tell her in its response to the stage three panel that it would not commission an independent assessor to reassess her child.
47. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance when making the apology.
48. Within three months of this decision, the Council has agreed to ask the district manager responsible for the allocated team responsible for Mrs X’s child to communicate decisions about funding to Mrs X, as soon as possible after being made, along with realistic timeframes for when payment will be received. The Council will put a note on Mrs X’s child’s records to show that this has been done. This is what the Council said it would do in its stage two adjudication.
49. Within three months of this decision, the Council has agreed to remind all relevant staff who deal with statutory children’s complaints, including directors, about the Council’s, and individual officer’s, duties at each stage of the process. These are set out in the statutory guidance, ‘Getting the Best from Complaints’.
50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. I have completed my investigation. I find the Council at fault and this caused injustice. The Council has agreed to apologise, complete an action it previously said it would, and make improvements to its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman