The Ombudsman's final decision:
Summary: There is fault in Plymouth City Council’s handling of this complaint about its refusal to agree to a request for investigation at stage 2 of the statutory children’s complaints procedure. The Council will make arrangements to consider the complaint at stage 2 of this procedure now.
- The complainant, whom I shall refer to as Ms X, says the Council is at fault as it has failed to progress her complaint about the actions of its children’s fostering team to stage 2 of the statutory children’s complaints procedure after she asked for this.
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 discussed the complaint with Ms X and carefully considered the written information she provided with her complaint. We obtained copies of relevant documents from the Council. I considered all the information before reaching a draft decision on the complaint.
- I gave the Council and Ms X the opportunity to comment on my draft decision and considered their comments before reaching my final decision on the complaint. .
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
What I found
- The law sets out a 3 stage procedure for councils to follow when looking at complaints about children’s social care services (The Children Act 1989 Representations Procedure (England) Regulations 2006).
- “Getting the Best from Complaints” is statutory guidance for councils implementing this three stage procedure.
- Paragraph 3.1.5 of the guidance confirms that where a council accepts a complaint at stage 1 of the procedure the complainant is entitled to pursue their complaint through all three stages. It further states that councils are “obliged” to ensure that the complaint proceeds to stages 2 and 3 of the procedure once it has been accepted as a complaint eligible to be considered under this procedure at stage 1. The guidance makes it clear that a complainant may complain to this office at any time during the process.
- “Getting the Best from Complaints” confirms that the Regulations place a 10 working day time limit on dealing with complaints at stage 1 of the process. Paragraph 3.5.5 of the guidance states “Where the local authority cannot provide a complete response it can implement a further 10 days’ extension…The maximum amount of time that Stage 1 should take is 20 working days. After this deadline the complainant can request consideration at Stage 2 if he so wishes”. Paragraph 3.5.6 states “The Complaints Manager should inform the complainant that he has the right to move on to Stage 2 if the time scale has elapsed for Stage 1 and the complainant has not received an outcome”. Paragraph 3.5.7 says the if the matter is resolved “the local authority must write to the complainant confirming the agreed resolution and the Complaints Manager should be informed of the outcome as soon as possible. Otherwise a letter should be sent by the local authority to the complainant…responding to the complaint”. Paragraph 3.5.8 goes on to say “Where the matter is not resolved locally, the complainant has the right to request consideration of the complaint at Stage 2”.
- The procedure does allow for early referral to the Local Government Ombudsman in certain circumstances after the completion of stage 2 of the process. The guidance states that, in order to consider this “stage 2 must have delivered:
- a very robust report;
- a complete adjudication;
- an outcome where all complaints have been upheld...and,
- ...the local authority agrees to meet the majority or all of the desired outcomes presented by the complainant...”
- Ms X fostered a child for the Council. The child had special needs and to support the placement the Council agreed to provide Ms X with regular respite care at agreed weekends and evenings.
- In July 2017 Ms X complained to the Council that its fostering team had failed to provide the agreed respite care and said the placement of the child had broken down as a result of this lack of support. She also complained that the child had not been properly prepared for changes and that a worker in the Council’s out of hours team had provided her with inappropriate advice and comment when she had called for help.
- It seems the Council provided a response to the stage 1 complaint in September though I have not seen a copy of this response.
- In late September Ms X asked for her complained to be progressed to stage 2 of the complaints procedure. In response the Council asked if she wished to meet Council officers to discuss the complaint though made it clear she did not have to agree to this and it could simply proceed to consider her request for investigation at stage 2 of the statutory complaints procedure. Ms X refused a meeting in early October and asked the Council to progress her complaint to stage 2. Shortly after the Council emailed Ms X to say that it was putting her request for a stage 2 investigation on hold while her Subject Access Request (SAR) was being dealt with. Ms X objected to this and again asked for her complaint to be considered at stage 2. Ms X chased the Council again in November and in early December.
- On 14 December the Council wrote to Ms X refusing to progress her complaint to stage 2 as, having considered the complaint and the response at stage 1 again, the complaints officer did not consider that investigation at stage 2 would reach a different outcome.
Is the Council at fault and did any fault cause injustice
- The Council delayed in dealing with Ms X’s complaint at stage 1 of the complaints procedure. This amounts to fault.
- There are no grounds for the Council to refuse to consider Ms X’s complaint at stage 2 of the statutory complaints procedure. I consider the Council should have made arrangements to consider Ms X’s complaint at stage 2 of the procedure when she requested it in September. As the Council is aware, the requirements relating to the children’s complaints procedure are set out in 2006 legislation: the Children Act 1989 Representations Procedure (England) Regulations 2006. Regulation 15 states that where a council and a complainant have not resolved matters at stage 1, the complainant may ask for his complaint to be considered at stage 2. He may make this request orally or in writing. Regulation 17 states that where a complainant has made a request under Regulation 15 “…then the local authority must consider the regulations in accordance with this Regulation”. Neither the Regulations allow the Council to divert from them due to what it considers the likely outcome might be.
- I do not consider I or the Council can say with any certainty what conclusions or recommendations an independent investigation may reach so cannot agree there is any basis for the Council to decide that it is unlikely an independent investigation would reach a different outcome.
- The failure to consider Ms X’s complaint properly has caused her injustice as she has been wrongly denied the right to have their complaint considered under all three stages of the statutory process.
- The Council will make arrangements to consider the complaint at stage 2 of the statutory complaints procedure as soon as possible.
- Within four seeks of the date of the final decision on the complaint the Council will:
- apologise to Ms X for its poor handling of the complaint and pay her £150 to recognise the avoidable delay and time and trouble she has been caused in having to complain to this office in order to have the matter resolved; and
- ensure that it is progressing complaints under the complaints procedure according to the Regulations and provide us with evidence to demonstrate it will do this.
- The Council’s failure to consider Ms X’s complaint at stage 2 of the statutory complaints procedure amounts to fault and this has caused Ms X injustice. The Council will take the agreed action to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman