Summary: The Council is at fault in its handling of Ms F’s complaint to the Council on matters related to the care of her niece by its children’s services team. It will take action promptly to consider her complaint now.

The complaint

1. The complainant, whom I shall refer to as Ms F, says the Council failed to consider her complaint about:
1. the way its children’s services team arranged her contact with her niece who is looked after by the Council; and
2. her concerns about the care being provided to her niece by her foster carers.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. I discussed the complaint with Ms F and considered the written information she provided with her complaint which included a copy of the Council’s letter telling her she did not qualify to have her complaint considered under the statutory children’s complaints procedure.
5. I gave the Council and Ms F the opportunity to comment on my draft decision and took account of the responses I received before reaching a final decision on the complaint.
6. 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.

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What I found

What should have happened

7. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. Only certain people qualify to make a complete using the procedure. Paragraph 2.6 of the statutory guidance (Getting the Best from Complaints) states that some people automatically qualify to make a complaint. These include a child who is being looked after by the council, a council foster carer and “such other person as the local authority consider has sufficient interest in the child or young person’s welfare to warrant his representations being considered by them”.
8. Paragraph 2.8 of the guidance states that councils are likely to receive complaints by adults that relate to a child but are not made on the child’s behalf. It says that councils have discretion to decide in cases where eligibility is not automatic “whether or not an individual has sufficient interest in the child’s welfare to justify his own complaint being considered by them”…
9. The Council has a two stage corporate complaints procedure. This means that the Council will consider a qualifying complaint at stage one of the procedure and if the complainant remains dissatisfied after consideration at this stage they may pursue their complaint to stage two for further consideration.

What happened

10. Ms F emailed the Council in February 2019 to complain that an agreement that she would have regular six to eight weekly contact with her niece was not being adhered to by the council’s children’s social work team. The Council replied on the same day to say that Ms F was not a qualifying person to complain under the statutory children’s complaints procedure so the Council would not consider the complaint. The Council advised Ms F to complain to this office if she was dissatisfied with this decision. The Council did also say however that the complaints officer would pass on Ms F’s concerns about her niece’s care to her and would also ask the social worker to write to Ms F to confirm arrangements for her contact with her niece. He also suggested that she may wish to seek legal advice regarding the contact.
11. Ms F then complained to this office.
12. As is our usual process we wrote to the Council informing it that Ms F’s case was being passed on for investigation. In response to this notification the Council wrote to us to confirm that it is willing to process Ms F’s complaint using the Council’s corporate complaints procedure.
13. I discussed the Council’s offer with Ms F and she is amenable to the Council investigating her complaint now.

Was the Council at fault and did this cause injustice?

14. The Council should have offered to consider Ms F’s complaint under its corporate complaints procedure when it decided she did not qualify to have it considered under the statutory process in February 2019. Having not considered the complaint at all, the complaint had not reached a point where referral to this office was necessary in order for the matter to be considered. This amounts to fault.
15. In addition, the information I have seen does not indicate that the Council considered whether Ms F could qualify to have her complaint considered under the statutory procedure having taken account of paragraphs 2.6 and 2.8 of the statutory guidance referred to above. I note that Ms F had previously looked after her niece after she became a looked after child and before she moved to an alternative long term foster placement She may therefore have a particularly close relationship with her niece that would be worth taking account of before rejecting consideration under the statutory process on the basis of not having parental responsibility or day to day care of her niece. I consider the apparent failure to consider paragraphs 2.6 and 2.8 of the guidance amounts to fault.
16. The failure to consider Ms F’s complaint has caused her injustice as she has yet to receive a response from the Council to her complaint.

Agreed action

17. In my draft decision on the complaint I recommended the Council should consider whether Ms F’s complaint should be considered under stat process ie whether she would qualify as “…such other person as the local authority consider has sufficient interest in the child or young person’s welfare to warrant his representations being considered by them”. In its response to the draft decision the Council said it had already taken action on this recommendation and completed this consideration. Having done so it had concluded that it did not consider Ms F should qualify to have the complaint looked at under the statutory procedure as she did not have parental responsibility for her niece, her niece had only lived with her temporarily for a few months, and the court had not provided for any contact between Ms F and her niece as part of the care plan agreed in the legal proceedings. I accept that it has now completed this consideration and that it has therefore already taken action to complete this recommendation.
18. The Council has agreed that it will now consider Ms F’s complaint under its published corporate complaints procedure and it will proceed to do so without delay. It should commence this within one month of the date of this final decision at the latest.

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Final decision

19. The Council was at fault in its handling of Ms F’s complaint and it will take action promptly to consider her complaint now.

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Investigator's decision on behalf of the Ombudsman