Summary: Mrs X complained about Birmingham Childrens Trust’s consideration of her complaint under the statutory complaint procedure about a review of the family’s short break package. Mrs X said the family suffered a harmful impact on their wellbeing and she incurred additional costs. We have found fault due to delay including in completing recommendations of the Independent Review Panel. We consider the agreed action of an apology and additional symbolic payment provides a suitable remedy.

The complaint

1. The complainant, Mrs X complains about Birmingham Childrens Trust’s consideration of her complaint under the statutory complaint procedure about a review of the family’s short break package in August 2022. Mrs X says the Trust poorly communicated the reason for the review and did not complete a proper assessment before removing the package of support for her daughter and significantly reducing it for her son when their needs had not changed. Mrs X says the outcome of the Trust’s consideration of the complaint did not provide a complete remedy.
2. Mrs X says because of the Trust’s fault, the family suffered a harmful impact on their wellbeing and she incurred additional costs as she had to pay privately for the missed support.

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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. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended).
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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

8. I read the papers provided by Mrs X and discussed the complaint with her. I have also considered information from the Council. I have explained my draft decision to Mrs X and the Council and provided an opportunity for comment.
9. Birmingham Children’s Trust is a body which is independent of the Council. Because it provides children’s services on behalf of the Council, we have the power to look at its actions and hold the Council to account for any fault identified. We have therefore referred to the actions of the Trust as being those of the Council in this decision statement.
10. 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

Background and legislation

11. 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. We also published practitioner guidance on the procedures, setting out our expectations.
12. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond. 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 investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
13. Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
14. The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days where required.
15. 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 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.
16. 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.
17. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
18. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.

Key events

19. A short breaks package had been in place for some time funded through direct payments. Mrs X’s son received 48 hours a month and her daughter received 22 hours a month. The Council decided in September 2022 to reduce the package for Mrs X’s son and remove it for her daughter.
20. Mrs X complained to the Council on 6 October about the above decision and the review process. Mrs X explained her children’s needs had been recently assessed and so were not due for review and they had not changed.
21. The Council responded to Mrs X’s complaint on 26 October at the first stage of the statutory complaints procedure. This response provided details of how to escalate the matter to Stage 2 if Mrs X was unhappy with the outcome.
22. Mrs X asked on 20 November for the matter to be escalated to the next stage of the complaint procedure.
23. The IO provided a detailed report dated 18 April 2023. The report noted that service provision had been made for ten or more years without accurate measurement of needs and the parents had not been asked to justify spending from the children’s direct payments accounts during that period. The report highlighted this in explaining the parents’ reaction to the dramatic reduction in service. However, the findings did not include reinstatement of the service but rather an assessment by an experienced social worker within the children with disabilities team and, depending on the outcome, the creation of a child in need plan. A greater emphasis on full parent carer assessments that differentiated children’s and parents’ respective needs was also recommended.
24. The IP produced a report dated 19 April concluding the IO had conducted a fair and thorough investigation and endorsing the recommendations.
25. The Council wrote to Mrs X on 25 April with its adjudication and apologised for the delay in finalising that stage of the complaints procedure. The Council accepted there had been fault in the review process and provided an apology for those elements that had been upheld by the IO. The Council agreed to progress each of the IO’s specific recommendations. The Council also confirmed it would complete a carers assessment for both parents. The Council provided details of Stage 3 of the complaint procedure if Mrs X remained unhappy.
26. Mrs X did not ask for the matter to be considered at Stage 3.
27. Mrs X sought legal advice. Her solicitor issued a letter before action (LBA) under the judicial review pre-action protocol to the Council towards the end of May. As noted above the Council can refuse to consider a complaint (or consider it further) if a complainant says they intend to take legal action.
28. Mrs X’s solicitor sought an assessment for both children and a carer assessment for the parents. If the Council decided not to complete the assessments while it was reviewing the relevant policy, the solicitor proposed the immediate reinstatement of the packages of support for both children until the new policy was in place. The solicitor also sought the cost of the support since September 2022 and £1,000 for the distress caused.
29. The Council reinstated the previous support package for both children in May and paid backdated monies into the relevant account on 18 July. The Council made a further payment of £194 on 18 September as it established a week had been missed.
30. The Council says this action was accepted by Mrs X’s solicitor at the time and effectively brought the legal challenge process to an end. The Council noted that any reassessment before the policy was finalised would remain open to further legal challenge.
31. Mrs X complained to the Ombudsman in November. She advised that all stages of the statutory complaint procedure had been completed and the support had only been reinstated because of the above legal action.
32. We advised Mrs X in December that we would not investigate her complaint as it had not completed the statutory complaints procedure. We referred the matter to the Council on 19 December accordingly. Mrs X was invited to revert to the Ombudsman if she remained unhappy once her complaint had completed the statutory complaint procedure.
33. The Stage 3 Independent Review Panel met on 24 January 2024. The Panel upheld some of the complaints that had previously not been upheld. The Panel made 10 recommendations which included the provision of an apology and consideration of a financial remedy for the unnecessary stress on the family and their time and trouble in pursuing the complaint. I have noted recommendation (7) stated:

“For BCT to ensure it seeks appropriate legal advice, to ensure that it remains compliant with its statutory responsibilities in regard to those recommendations made at stage 2 of the complaints process, that have been placed “on hold” pending the Letter Before Action (LBA).

Panel were of the view that BCT still had a duty to assess and review the children and the wider family, irrespective of the LBA. Panel also felt it was unacceptable that BCT had not determined its position on the stage 3 recommendations, since the LBA was sent 9 months earlier. There seemed to have been drift and delay in BCT understanding this and were unable to provide Panel with any timescales for the family.”

34. The Council wrote to Mrs X on 23 February with its adjudication on the Stage 3 Independent Review Panel findings and recommendations and apologised for the delay in doing so. The Council acknowledged the nature of the review had been poorly communicated and the outcome reached without an assessment or care plan. The Council explained the general aim of the review process had been to instil better oversight of packages to ensure resources were allocated fairly and according to family’s needs. The Council accepted it had not managed this well and had not got it right and apologised for the stress caused to Mrs X and her family. The Council disagreed with some of the Panel’s findings which included upholding several elements the Panel had not upheld and provided its reasons. The Council also offered £500 to recognise the distress caused by the identified fault and referred to the Ombudsman’s guidance on remedies in arriving at this amount. It did not consider a time and trouble payment was merited as these were usually made in cases of significant delay in complaint handing which it did not consider had happened in this case.
35. In responding to Panel recommendation 7, the Council confirmed it was issuing a new policy in relation to short breaks and had consulted with its legal team to ensure the Council was fully complaint. This did not fully address the substance of the Panel recommendation.
36. Mrs X resubmitted her complaint to the Ombudsman on 25 February as she remained unhappy with the outcome of the statutory complaint procedure and remedy offered. Mrs X stated no assessments had taken place including carers assessments.
37. In responding to the Ombudsman, the Council explained that following Mrs X’s complaint and legal action it had reinstated the affected packages and embedded a practice that no package was decided without a clear evidence based assessment. The Council said it was shortly introducing a new policy with clearer guidelines on how assessed need was identified and supported.
38. The Council has confirmed that the support packages were reinstated in May 2023 in line with the original package of support and backdated monies were paid into the relevant account on 18 July 2023. The Council made a further payment of £194 on 18 September 2023 as it established a week had been missed. The Council has provided a reconciliation of the backdated monies and confirmed they were the sum of what the children were receiving before September 2022 until the payments were reinstated in May 2023.
39. The Council highlighted the impact of Mrs X’s legal action in terms of addressing Panel recommendation 7. It was considered that any reassessment before the revised policies were finalised would be open to further challenge by Mrs X. The Council confirmed a full reassessment of needs had been started in March 2024 based on the draft policy which would be finalised once the draft policy was formally in place. The updated draft policy was finalised in October 2024. The Council shared the draft assessment with Mrs X on 11 November 2024 and her comments were incorporated into the document. The assessment was due to be finalised by the end of November and considered at the next available Community Resources Panel.
40. The carer’s assessments were completed towards the end of May 2024. The Council has suggested the delay in completing these assessments was also due to Mrs X’s view they were not lawful.
41. In responding to my enquiries on the complaint, the Council also offered to make a payment in addition to the £500 it had already offered to recognise the distress caused by the identified fault. The Council offered an additional payment of £250 or an interest payment on the backdated monies (whichever was the greater) to reflect the inconvenience Mrs X was put to in funding her children’s care between September 2022 and May 2023.

My consideration

42. It is not our role to reinvestigate matters which have already been subject to a properly conducted and independent investigation. To do so would not be a good use of public resources. Instead, the focus of our investigations in the event of a complaint will focus on whether the correct process was followed, if there was avoidable delay and whether the remedy offered by the Council was in line with our published guidance.
43. For this reason, I do not intend to revisit the investigation or comment on the findings reached about the substance of Mrs X’s complaint. The independent investigator undertook a detailed investigation into these matters which were subsequently considered by an Independent Review Panel. I am satisfied the findings reached were sound and the recommendations made were appropriate.
44. The above process identified the Council was at fault and made recommendations which were in most cases properly considered and acted on where needed. Although the Council had not completed some of the recommendations in the way anticipated it has provided cogent reasons for any departure which I have mostly accepted.
45. However, even taking into account the legal issue raised by the Council, I consider there was avoidable delay in completing Panel recommendation 7. The Council’s adjudication letter sent to Mrs X in February 2024 did not provide a cogent reason for not completing this recommendation in full. Taken together, I consider this constitutes fault.
46. Without such an assessment it is not possible, even on balance of probabilities, to decide what support should have been provided but for the fault. Our usual approach in these circumstances is to recommend a prompt reassessment and consideration of a symbolic payment. In this case, we know the support packages had already been reinstated in May 2023 in line with the original package of support and backdated monies were paid in July and September that year. I have seen nothing to suggest Mrs X was unhappy with the level of support being provided at the time and her complaint was that it had been reduced without a proper assessment. Mrs X was clear throughout her complaint that her children’s needs had not changed.
47. For this reason, I consider the Council’s offer of £500 with the additional amount now offered of £250 or an interest payment on the backdated monies (whichever is the greater) is a reasonable and proportionate way to acknowledge the impact on Mrs X and her family.
48. There was also delay in the Stage 2 investigation. Mrs X escalated her complaint on 20 November 2022 but did not receive the Council’s adjudication letter until 26 April 2023. This is significantly outside the statutory timescale of 25 working days or 65 working days if required. This is fault. Although the Council provided an apology for this delay, we would usually recommend a symbolic payment for such delay. I have included a recommendation below to reflect this.

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Agreed action

49. When a council commissions or arranges for another organisation to provide services we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions.

50. Where we find fault with the actions of the organisation providing the service, we can make recommendations to the council alone. Here we have found fault with the actions of Birmingham Childrens Trust and make the following recommendations to the Council.
51. The Council has agreed to take the following action within one month of my final decision to provide a suitable remedy:
1. write to apologise to Mrs X for the delay in completing the recommendations of the Independent Review Panel;
2. pay Mrs X the previously offered sum of £500 and the additional sum of £250 (or an interest payment on the backdated monies already paid - whichever is the greater) to acknowledge the avoidable distress caused by faults identified during the statutory children’s complaint procedure; and
3. pay Mrs X £200 to acknowledge the delay in the statutory children’s complaint procedure.
52. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation as we have found fault but consider the agreed action above provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman