The Ombudsman's final decision:
Summary: Mr A complains about the Council’s investigation of his complaint under stage two of the statutory children’s complaint procedure. Mr A says there were flaws in the investigation. Mr A also complains about flaws in the Council’s initial section 47 investigation into the allegations. The Council is at fault for not allowing Mr A to take his complaint to stage three of the statutory procedure. The Ombudsman has recommended the Council arrange a review panel to look at Mr A’s complaint.
- Mr A complains about the Council’s stage two investigation into his complaints relating to an allegation made against him of a physical assault. Mr A says there are flaws in the stage two investigation. In particular, it did not consider whether a section 47 (Children Act 1989) investigation was the appropriate process to investigate the allegations. Mr A also complains there were flaws in the Section 47 investigation because it considered information it should not have.
The Ombudsman’s role and powers
- 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)
- If we are satisfied with a council’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)
How I considered this complaint
- I have considered the information provided by Mr A and the Council. I have also considered relevant policies and guidance.
- I sent a draft decision to Mr A and the Council and considered their comments.
What I found
- This document sets out statutory guidance on how councils should carry out the Children Act 1989 children’s complaints procedure. It sets out that only in exceptional circumstances may local authorities justify a variation to the guidance.
- The guidance states that where the Council accepts a complaint at stage one, the complainant can take their complaint further through the procedure. The local authority must (except in exceptional circumstances) ensure the complaint continues to stage two and three if it is the complaint’s wish.
- Further, the guidance highlights that the complaint can request a further consideration of their complaint by a review panel if they are dissatisfied with the outcome of the stage two investigation.
- Annex 3 of the guidance states there are limited circumstances in which the Council can make an early referral to the Ombudsman. It outlines that it can only happen if:
- there has been a robust stage two report upholding all the complaint(s)
- most of the complainant’s desired outcomes have been met, and
- both parties agree to the referral
- The guidance goes on to state that if the Ombudsman concludes an early referral was incorrect, he may propose the complaint is considered at a stage three review panel.
- Mr A is a foster carer. Mr A’s foster daughter, who I will refer to as Q, made an allegation he had physically assaulted her.
- The Council carried out enquiries under section 47 of the Children Act 1989. The Council makes Section 47 enquiries to decide whether, and what type, of action is required to safeguard and promote the welfare of a child who is suspected of, or likely to be, suffering significant harm.
- Following a strategy meeting, the Council decided the allegation of physical assault was substantiated. Mr A complained to the Council about this decision. The Council accepted the complaint under the statutory Children Act 1989 complaints procedure.
- In April 2018, an independent officer completed an investigation of Mr A’s complaint under stage two of the statutory procedure. The investigating officer upheld most, but not all, of Mr A’s complaints.
- Mr A was not happy with the stage two investigation, as he felt there were flaws in the investigation. Mr A complained the stage two investigation did not consider whether a Section 47 investigation was the appropriate process to investigate the allegations. Further, Mr A complained there were flaws in the Section 47 investigation itself because it had considered information it should not have.
- The Council refused to escalate Mr A’s complaint to stage three of the statutory procedure on the basis a panel would not be able to achieve Mr A’s desired outcome.
- The statutory guidance is clear that once the council accepts a complaint at stage one, the complainant can pursue their complaint through the whole statutory procedure. It specifically highlights that if a complainant is dissatisfied with the stage two investigation, they can ask a review panel to consider their complaint.
- Councils are only able to make an early referral to the Ombudsman in limited circumstances. Having reviewed the evidence available, I do not consider the Council has met the criteria for early referral as set out in the statutory guidance. While the Council may feel the panel cannot achieve Mr A’s desired outcome, Mr A has raised concerns about the stage two investigation. This is something a panel can consider.
- The Council has not allowed Mr A to progress through all three stages of the statutory complaints procedure. This was fault and it caused Mr A an injustice as Mr A has not been provided with an opportunity to have his complaint considered by a stage three review panel.
- To remedy the injustice caused by the Council’s fault, the Council has agreed to arrange for a stage three review panel to consider Mr A’s complaint. The Council could consider using Mr A’s complaint to the Ombudsman as his stage three complaint.
- The Council will also apologise to Mr A for refusing to arrange the stage three review panel.
- The Council should complete the agreed remedy within four weeks of the final decision.
- I find the Council was at fault for not allowing Mr A to pursue his complaint to stage three of the statutory Children Act 1989 complaints procedure. The Council has accepted my recommendations. I am satisfied and will complete my investigation.
Investigator's decision on behalf of the Ombudsman