Summary: We found fault in a previous investigation because the Council failed to consider Ms X’s complaint about a personal budget for her child, via the statutory complaints procedure for children’s social care services. The Council agreed to consider the complaint via the statutory procedure, but then failed to do so. Therefore, we opened this investigation to consider further fault causing injustice to Ms X. There was fault by the Council which further delayed Ms X in receiving a response to her complaint via the statutory procedure. The Council agreed to pay a financial remedy to recognise the distress caused by this further delay.

The complaint

1. Ms X’s child D is disabled and receives a personal budget from the Council to arrange support to meet their needs. Ms X complained the Council delayed in reviewing D’s personal budget in mid-2023, and then failed to respond to her complaint about this. We considered Ms X’s complaint and invited the Council to remedy the injustice caused, by:
• considering the complaint under the statutory complaints procedure for children’s social care services; and
• paying Ms X a financial remedy for the delay.
2. The Council agreed to this remedy but then failed to properly complete it within the agreed deadline, so we opened this investigation to consider further fault causing injustice to Ms X.

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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)

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How I considered this complaint

5. I considered:
• information provided by Ms X;
• comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
6. Ms X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. 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

Children in need

8. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
9. Where a council has assessed a disabled child as having needs which are eligible for support, they are entitled to a service that is sufficient to meet their needs. Alternatively, parents/carers of disabled children can ask for a direct payment to meet the needs of the child, so they can arrange and pay for support themselves. The council must carry out an assessment and direct payments must be sufficient to meet the assessed needs. For a parent or guardian to request a direct payment, a council must first identify a personal budget. This is the notional amount of money needed to pay for the support.
10. Councils must review the making of direct payments: 
• at least once within the first year of the direct payments being made; and
• at appropriate intervals, not exceeding twelve months, thereafter.

The statutory complaints procedure for children’s social care services

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 guidance lists who may complain using the statutory procedure. The council does not need consent from the child or young person to investigate a complaint from a person on this list. However, it may need consent from the child or young person to disclose information about them to the person making a complaint.
13. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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, we expect people to complete the complaints procedure before we will consider whether there were any flaws in how the Council investigated their concerns.
19. 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, or all significant complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.

Background

20. Ms X’s child D is disabled and receives a personal budget from the Council to arrange support to meet their needs.
21. In October 2023, Ms X complained to the Council that it had delayed in reviewing D’s personal budget, which it should have reviewed in mid-2023.
22. A month later, the Council had not responded to Ms X’s complaint, so she came to the Ombudsman. We allowed the Council reasonable opportunity to respond to the complaint, but three months later in February 2024 it had still not responded so we decided to consider it.
23. We considered Ms X’s complaint in February 2024 and invited the Council to remedy the injustice caused, by:
• beginning consideration of the complaint at Stage 2 of the statutory complaints procedure for children’s social care services; and
• paying Ms X a financial remedy of £100 for the delay up to that point.
24. The Council agreed to complete this remedy by 1 April 2024.
25. The Council paid Ms X the £100, and responded to her complaint, in mid-April 2024. However, it responded via its corporate complaints procedure, rather than the statutory procedure as it had agreed. We continued to correspond with the Council to ask it to begin consideration at Stage 2 of the statutory procedure.
26. In mid-June 2024, the Council told us it had allocated an investigating officer and an independent person to begin consideration at Stage 2 of the statutory procedure. However, it had still not contacted Ms X to begin the procedure. Therefore, we decided to open this new investigation to consider further fault causing injustice to Ms X.

My findings

27. In mid-July 2024, a month after we opened this investigation, the Council confirmed it had begun consideration of Ms X’s complaint about D’s personal budget at Stage 2 of the statutory complaints procedure for children’s social care services. It arranged a meeting with Ms X and the investigating officer on 12 July 2024. I am therefore satisfied the Council has complied with our agreed recommendation to begin consideration at Stage 2 of the statutory procedure.
28. The Council failed to complete our recommendations in the previous investigation, by the agreed deadline. This was fault, and the delay caused injustice to Ms X. The Council should provide a remedy for this injustice.
29. In line with the relevant law and guidance, after beginning Stage 2 in July 2024, the Council should complete its consideration by 10 January 2025 at the latest. Once the Council carries out the statutory children’s complaint procedure and if Ms X remains unhappy, she can make a new complaint to the Ombudsman. However, where a council has properly considered a complaint via the statutory procedure, we would not normally re-investigate it. We would limit our investigation to whether the Council:
• correctly followed the procedure, within the correct timescales, and if not whether this calls the findings into question;
• considered the findings and recommendations of the independent investigation and review panel; and
• completed any recommendations without delay.

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Agreed action

30. Our guidance on remedies sets out the Ombudsman’s approach to remedying delay in the statutory complaints procedure for children’s social care services. This says for delays in the statutory procedure, we usually recommend a symbolic payment of up to £500, depending on the severity of injustice caused.
31. Within one month of our final decision the Council will pay Ms X £300 to recognise the further delays in its consideration of her complaint via the statutory procedure, from February to July 2024.
32. The Council will provide us with evidence it has complied with the above action.

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Final decision

33. I have completed my investigation. There was fault by the Council which further delayed Ms X in receiving a response to her complaint via the statutory complaints procedure for children’s social care services. The Council agreed to our recommendation to pay a financial remedy to recognise the distress caused by this delay.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman