Summary: The Council failed to investigate Ms X’s complaint using the children’s statutory complaints procedure when it should have done. It also delayed responding to Ms X’s complaint through its corporate complaints procedure. The Council’s faults have caused Ms X avoidable frustration and uncertainty. In recognition of this, the Council has agreed to apologise, pay Ms X £250 and carry out service improvements.

The complaint

1. Ms X complained the Council wrongly suspended her children’s social care package and direct payments and failed to be clear in its direct payments agreement about what they could be used for. Ms X said these faults caused her distress and a loss of social care provision.

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The Ombudsman’s role and powers

2. 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)
3. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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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What I have and have not investigated

6. Since Ms X complained to the Ombudsman, she told the Council it should re-assess her children’s current care package as she said the family require social care to be provided overnight.
7. This is a new complaint which the Council has not yet had an opportunity to respond to. It is reasonable for the Council to have that opportunity so, for the reasons set out in paragraph 3, I will not investigate that part of Ms X’s complaint here. It is open to Ms X to request the Council review the current care package and or raise a new complaint about this issue.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered all comments made before making a final decision.

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What I found

Law and guidance

Child in Need (section 17)

10. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need. A child is in need if:
• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.
11. When a council assesses a child as being in need, it supports them through a Child in Need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review Child in Need plans regularly.

Chronically Sick and Disabled Persons Act 1970

12. This Act requires councils to keep a record of disabled people living in its area and provide certain support and provision to them. This can include social care support to assist them in accessing their community.
13. If a child or young person has an Education, Health and Care Plan (EHC Plan) – a document which sets out a child’s special educational needs and what arrangements should be made to meet them - and the council decides it is necessary for support to be provided under section 2 of the Chronically Sick and Disabled Persons Act 1970, it must include this in Section H1 of their EHC Plan.

Direct payments

14. Where a council decides to provide services to a disabled child, the parents or carers can ask for direct payments. This means the council gives the parent or carer the money to commission support required by the child. The council must carry out an assessment and direct payments can only be used by the parent or carer to meet the child’s needs. A direct payment agreement between the Council and the parent or carer should set out what the payments can and cannot be used for.

Children’s statutory complaint procedure

15. The Children Act 1989 sets out a three-stage procedure councils must follow when looking at complaints about certain children’s social care services. We call this the “children’s statutory complaints procedure”.
16. The accompanying statutory guidance, ‘Getting the Best from Complaints’, sets out the process for considering complaints. We call this, “the Guidance”.
17. The first stage of the procedure is local resolution. If a complainant is not happy with a council’s stage one response, they can ask it to consider it at stage two. At stage two, councils appoint an investigator, and an independent person who oversees the investigation.
18. 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 purpose of the stage three panel includes:
• considering the adequacy of the stage two investigation;
• obtaining any further information or advice in order to resolve the complaint; and
• identifying injustice and recommending appropriate redress.

The children’s statutory procedure: what to do when other complaints procedures are involved

19. The Guidance says, where a complainant has other related complaints that do not fall within this statutory procedure, the council may wish to consider whether there are advantages in accepting these into a single investigation. It says councils are encouraged to offer a complete single response where possible.

The role of the Ombudsman in statutory children’s complaints

20. 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 under the statutory procedure is robust with all complaints upheld.

What happened

21. Ms X’s children, Child F and Child G, have disabilities. Throughout the period Ms X complained about, Child G was on a Child in Need plan. Child F was supported under a Child in Need plan for some of the time and appears to have been supported under the Chronically Sick and Disabled Persons Act 1970 for the remaining time.
22. The children had a package of social care support in place to help meet some of their needs, including accessing the community. Ms X received direct payments from the Council to pay the social care staff that support Child F and Child G.
23. The Council had concerns Ms X was using direct payments for activities that were not within the direct payment agreement for the children. As a result, the Council suspended the direct payments while it investigated and the children stopped receiving their social care package for several months.
24. Ms X complained to the Council. She said it was wrong for the Council to have suspended social care in the way it did, which had a significant impact on her and her children. She also raised concerns about the lack of clarity in the direct payment agreement. The complaint made clear that the issues related to support received under Child in Need.
25. The Council decided to consider Ms X’s complaint through its corporate complaints procedure which it concluded on 27 September 2024. It was delayed by several weeks in responding at both stages and when it did, it upheld several of her complaints.
26. The Council sent us a copy of its screening tool that its officers use to decide which complaints procedure should be used and said it is not clear whether the officer involved completed one of these. It said the officer has now left the Council.
27. Ms X complained to the Ombudsman as she was not satisfied with the Council’s complaint findings.

My findings

28. For the reasons set out under ‘What I have and have not investigated’, I have not investigated Ms X’s later concerns raised regarding overnight stays.
29. 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 and thorough response to their concerns. This independence is not built into other complaints procedures, such as corporate complaints. Because of this, the Ombudsman expects councils to use the statutory complaints procedure where a complaint meets the criteria, for instance where the complaint relates to support provided under Child in Need.
30. Where a person complains about a matter covered by the statutory procedure, the council must use that procedure to respond to the complaint. Therefore, the Council had to use the procedure for the parts of Ms X’s complaints that related to support it delivered to Child F and Child G under Child in Need legislation. Where a complaint relates in part to provision made under other legislation – such as the Chronically Sick and Disabled Persons Act 1970 - the council should consider whether to include those other issues in the statutory investigation.
31. The Council failed to do either and this fault has caused Ms X avoidable frustration and uncertainty. It meant she went through unnecessary time and trouble pursuing the complaint through the corporate complaints procedure.
32. The Council also delayed responding to Ms X’s complaint through the corporate complaints process, which was fault and caused her further frustration.

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Action

33. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X for the injustice caused by its failure to consider her complaint through the correct procedure and its delay investigating her complaints;
2. Pay Ms X £250 to recognise the frustration and uncertainty caused to her by the Council’s faults; and
3. Demonstrate that it has begun a stage two investigation into her complaints using the children’s statutory complaints procedure and considered, in line with the Guidance, whether it ought to incorporate complaints about any matters provided under different legislation.
34. Within three months of the date of the final decision, the Council has agreed to:
1. Demonstrate that it has reminded complaint handling staff of the importance of using the Council’s screening tool for ensuring that complaints which should be investigated under the children’s statutory procedure are not missed in future;
2. Demonstrate that it has considered what caused the delays in its corporate complaints handling in this case and taken steps to prevent these delays in future.
35. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I find fault causing injustice. I have recommended actions the Council should take to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman