The Ombudsman's final decision:
Summary: Mrs X complains about the Council’s failure to consider her complaints under the statutory procedure for children social care services. The Council was at fault for suspending stage two and three complaint investigations because of the COVID-19 pandemic. It has agreed to start the stage two statutory complaint investigation without delay.
- The complainant, who I have called Mrs X, complains the Council has failed to properly consider her complaints under the statutory complaint procedure for children social care services. Mrs X complaints relate to the Council’s decision to remove two foster children from her care and the Private Fostering Agency’s subsequent decision to remove her approval as a foster carer. This caused her and her family considerable distress and frustration.
What I have investigated
- I have only investigated the Council’s action and handling of Mrs X’s complaints.
- I have not investigated the substantive issues of Mrs X’s complaint because these concerns have not yet been properly considered by the Council.
The Ombudsman’s role and powers
- 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. (Local Government Act 1974, section 26(5))
- 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)
- We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), 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 spoken to Mrs X and considered the information she has provided in support of her complaint.
- I have considered the information the Council has provided in response to our enquiries.
- Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
- 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
Relevant legislation and guidance
- Section 26(3) of the Children Act, 1989 says all functions of the local authority under Part 3 of the Act may form the subject of a complaint under the statutory complaints procedure.
- There are three stages to the statutory social services complaint procedure. The first stage allows an informal resolution of the complaint. If that is not possible, the complainant is entitled to an independent investigation of the complaint. The Council may also appoint an independent person to oversee the investigation. At the final stage an independent Complaints Review Panel can consider the complaint.
- At each stage the complainant has the right to ask for the complaint to be considered at the next stage of the procedure. Once the complainant has completed the statutory complaints procedure, he/she can refer the complaint to the Local Government Ombudsman, if they remain dissatisfied.
- Section 26(3) of the Children Act 1989 provides that all functions under Part 3 of the Act may form the subject of a complaint. Section 24(D) of the Children Act state that a local authority foster carer, including those caring for children placed through independent fostering agencies, is eligible to complain under the Children Act statutory process.
- There are timescales for the consideration of social care complaints under the above procedures. Getting the Best from Complaints 2006 provides detailed guidance on how councils should conduct investigations.
- Councils must still follow the statutory procedure during the COVID-19 pandemic. However, the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 gives more flexibility for councils around arranging stage three review panels. The Regulations make no changes to the first two stages of the complaint process.
- Mrs X and her husband were registered as foster carers by a Private Fostering Agency (the Agency) in 2015. In March 2015, two children were placed with them by the Council.
- In December 2019, an incident occurred involving one of Mrs X’s birth children, which led to the Council removing the two foster children from Mrs X’s care.
- On 8 June 2020, Mrs X made a stage one complaint to the Council about its decision to remove the foster children from her care and the lack of support she had received while fostering from the Agency.
- The Council responded to Mrs X’s complaint on 30 June 2020. It explained it could not seven of the nine complaints she had made because these related to actions of the Agency. The Council suggested Mrs X complained directly to the Agency about these issues.
- The Council did not uphold the two complaints it responded to. The Council explained it had acted in the best interests of the foster children by removing them from Mrs X’s care but acknowledged the distress this had caused her and her family given the significant length of time the children had spent in Mrs X’s care.
- Mrs X remained dissatisfied with the Council’s response and, on 1 July 2020, asked why it had not signposted her to stage two of the statutory complaint process. The Council offered to speak with Mrs X on the telephone to discuss her concerns further. A short telephone meeting took place shortly afterwards, but this did not resolve the concerns Mrs X had raised.
- Mrs X continued to correspond with the Council and on 1 September 2020 it issued a further response to Mrs X’s original complaint in June 2020. The Council’s response included comments from the Agency in answer to the seven remaining complaints Mrs X had made. The Council concluded it was satisfied with the Agency’s responses and handling, and therefore did not uphold the remainder of Mrs X’s complaints.
- On 8 September 2020, Mrs X asked the Council to escalate her complaint to stage three as she remained dissatisfied. The Council responded on the same day and asked Mrs X to clarify the specific aspects she remained unhappy with and to explain that it had not reached stage two of the complaint process in her case. The Council explained that stages two and three of its children complaint procedure were suspended because of the COVID-19 pandemic and associated restrictions. The Council offered to consider Mrs X’s complaints under stage two of its corporate complaint procedure which would be investigated at Director level. The Council asked Mrs X again to clarify which aspects she remained dissatisfied with.
- On 21 September 2020, Mrs X emailed the Council with details of her continued dissatisfaction. She felt the Council’s investigation into her concerns about the Agency was superficial and the Council had ignored the outcomes she had requested in her original complaint made in June 2020. Mrs X also questioned why the Council was unable to investigate her complaints under stages two and three of the statutory procedure when COVID-19 regulations only amended the action councils needed to take for stage three review panels.
- The Council issued its last response to Mrs X on 22 October 2020, where it explained that it had nothing further to add to its previous complaint response and signposted Mrs X to us if she wished to take her complaints further. Mrs X brought her concerns about the Council’s handling to us shortly afterwards.
- In response to our enquiries, the Council has explained it suspended stage two and three children complaint investigation because of the logistical and resource issues created by the restrictions due to the COVID-19 pandemic.
- While I acknowledge this has placed a strain on all councils, there were no changes to the law or guidance regarding the statutory complaint procedure for children social care services. The Council’s duties to complete the stage two and, if Mrs X remained dissatisfied, stage three complaint process remained.
- The Council had a maximum of 65 working days to complete the stage two investigation from July 2020, or at least once it had discussed the matter with her by telephone and she had indicated she remained dissatisfied. The Council’s delay in progressing Mrs X’s complaint through the statutory process to date is fault which has caused unnecessary frustration and distress to Mrs X.
- Within two weeks of my final decision, the Council agrees to start the process of considering Mrs X’s complaints under stage two of the statutory complaint procedure. The investigation should include consideration of the delay in progressing Mrs X complaints so far and the impact this has had on her. It should also include consideration of complaints about the Private Fostering Agency the Council used to place the children with Mrs X. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them.
- Once Mrs X has completed the statutory procedures, if she remains dissatisfied, she can resubmit her complaint to the Ombudsman.
- I have completed my investigation with finding of fault causing injustice. The Council should now complete the statutory complaint procedure without further delay.
Investigator's decision on behalf of the Ombudsman