Northumberland County Council (18 014 755)

Category : Children's care services > Friends and family carers

Decision : Upheld

Decision date : 12 Dec 2019

The Ombudsman's final decision:

Summary: The Council took over three years to investigate Ms X’s complaints about her request for support for looking after her grandson. The law says it should have taken the Council 65 working days. The Council has already taken some action to remedy the injustice caused to Ms X. The Council’s remedy is not sufficient. The Council should pay Ms X a further £1500 to recognise distress and uncertainty she has been caused. The Council should also take action to improve its complaint handling processes.

The complaint

  1. Mrs X complains that the Council failed to acknowledge her grandson, whom I shall call Y, should have been a Looked After Child and both Y and Ms X should have been provided with the appropriate support. Ms X says the Council’s response to her complaint focuses on matters from April 2014 onwards and fails to appropriately respond to matters that occurred between August 2004 and March 2014.

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What I have investigated

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  4. 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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The Ombudsman’s role and powers

  1. 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

  1. An investigator has spoken to Ms X and I have considered notes of their conversation.
  2. I have also considered the Council’s response to Ms X’s complaints at the three stages of the statutory children’s complaints process and its response to our enquiries. This includes:
    • Y’s social care records.
    • Correspondence with Ms X.
    • Legal advice obtained by the Council.
  3. I have written to Ms X and the Council with my draft decision and given them an opportunity to comment.
  4. 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

Complaints about children’s services

  1. 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.
  2. If a complaint is submitted orally at stage 2 of the process, a council must ensure the details of the complaint and the complainant’s desired outcomes are recorded in writing and agreed with the complainant. (Regulation 16, the Children Act 1989 Representations Procedure (England) Regulations 2006)
  3. The law says the stage 2 investigation should be completed and the response sent within 25 working days. This can be extended to a maximum of 65 working days in complex cases. (Regulation 17(3) the Children Act 1989 Representations Procedure (England) Regulations 2006)
  4. The law says the start date of a stage 2 investigation runs from the date a council received a request to escalate a complaint. If the complaint is received orally then the start date is from the date details of the complaint were agreed in writing. (Regulation 17(4) & (5) the Children Act 1989 Representations Procedure (England) Regulations 2006)
  5. If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. This is considered by a panel made up of independent people who are not members or officers of the local council.
  6. Stage 3 panels should meet within 30 working days of a request for a stage 3 panel hearing. The panel should produce its report within 5 working days of the hearing and the Council should issue its response within 15 working days of receiving the report.
  7. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

  1. Ms X has been looking after her grandson, Y, for periods between 2004 and 2014. In 2014 Y came to live with Ms X and continues to reside with her.
  2. On 26 November 2014 Ms X complained to the Council as she did not believe she was receiving sufficient support for caring for Y. The Council responded to
    Ms X at stage 1 of the complaints procedure on 23 February 2015. The Council said:
    • Y had never been considered a child in need.
    • The Council had written to Ms X’s solicitors in 2005 and 2006 about Y living with her on a permanent basis.
    • Y had not been “placed” with Ms X by the Council.
  3. In May 2015 Ms X asked for her complaint to be considered at stage 2 of the statutory complaints process. The Council appointed an Independent Person to oversee the investigation, however it failed to appoint an Investigating Officer until September 2015.
  4. In March 2016 the Investigating Officer was unable to continue with the investigation and another Investigating Officer was appointed. The new Investigating Officer produced a draft investigation report in November 2016.
  5. The Investigating Officer found:
    • The Council placed Y with Ms X in August 2004 after Y was left home alone by his mother. Y was removed from the property by the police. The Investigating Officer found the Council failed to complete any assessments into Y’s situation at the time. Records suggest Y was living back with his mother in October 2005.
    • The Council had failed to carry out a proper assessment of Ms X’s grandson’s situation on several occasions and responded “with a degree of under reaction and out with their procedures and good practice”. The Investigating Officer found it was “not unreasonable to argue that [Ms X’s grandson] would not be in the troubling situation he appears to continue to be in, had the earliest concerns, referrals and interventions been more robustly investigated and assessed”.
    • The Council responded to Ms X’s concerns about her grandson’s situation in July 2011 but failed to advise her what it was doing.
    • The Council failed to provide Ms X with a formal response to a complaint she raised in July 2011.
    • The Council failed to carry out an assessment of Ms X as a “friends and family carer” for Y. The Council obtained legal advice which suggested a court would consider Y to be a “looked after child”. The Council disagreed with this advice but told Ms X it was not progressing an assessment because its fostering panel was unlikely to agree to it. The Investigating Officer said the “lack of action and assessment leaves little confidence in understanding how Children’s Services has ever been able to accurately determine the level and nature of support necessary”.
    • The Investigating Officer was unable to conclude whether the Council had offered to provide Ms X with paperwork to apply for a Special Guardianship Order for Y. The Investigating Officer found Ms X to be consistent in her recollection of advice given but there was no supporting evidence that would allow the Officer to reach a conclusion about what happened.
  6. The Investigating Officer made the following recommendations:
    • The Council should carry out a review of all the decisions and actions made in relation to Y’s care since 2003. This would provide Ms X with reasons why decisions had been reached. It would also allow the Council to make an informed decision about Y’s current situation.
    • The Council should be provided with “accurate, current and complete assessment documents undertaken directly with her”.
    • The Council should apologise to Ms X for the delays and incomplete responses she received, particularly in relation to her complaint in 2011.
    • The Council should agree a “sum of financial compensation” with Ms X that takes into account “at the very least, the recorded period of four years and one month that [Ms X] at the request of Children’s Services took care of [Y] when his mother was not able to do so”.
  7. In November 2017 the Council provided the Investigating Officer with further comments and a copy of up to fate legal advice it had obtained. The Investigating Officer considered the evidence provided but was not persuaded to change her view on the complaint. Her findings were supported by the Independent Person.
  8. The Independent Person contacted the Council in December 2017 to ask it to send Ms X a copy of the Investigating Officer’s report. A copy was provided to her that month.
  9. The Investigating Officer re-issued the stage 2 report in January 2018. This included the Officer’s consideration of points raised by the Council and Ms X but no significant changes were made to the overall findings.
  10. The Council wrote to Ms X on 16 July 2018. The Council apologised for the delays in the complaints process. The Council said this was because it had to seek further legal advice. The Council accepted the Investigating Officer’s findings.
  11. The Council said it would be “disproportionate” to review the Council’s actions in relation to Y’s care since 2003. The Council said it would review Y’s current care to ensure he was receiving appropriate support.
  12. The Council said it accepted that it should have provided Ms X with Special Guardianship Order allowance from April 2014 when Y came to live with her. The Council said it owed Mr X £29,860.48 in back payments. It said it would also pay £384.80 to over the period form 1 July to 20 July 2018. It confirmed that Ms X would then receive £296.36 on a fortnightly basis.
  13. The Council also said it would pay Ms X £500 to acknowledge the time and trouble she was put to pursuing her complaint and the delays she experienced.
  14. On 23 July 2018 Ms X requested a stage 3 review of her complaint. Ms X said the Investigating Office found that Y had been placed with her in 2004 but the Council claimed it was a private family arrangement. Ms X said the Council should have assessed Y at the time and provided with support.
  15. The Panel heard from Ms X, the Council and the Investigating Officer. The Panel issued its report on the complaint on 30 October 2018. The Panel found that:
    • The Council had misinterpreted the Investigating Officer’s findings and had not considered providing Ms X with financial remedy for period between 2004 to 2008 when she was caring for Y.
    • The Council accepted that is assessment and the support offered to Ms X “had been deficient and that if done correctly [section 17] support may have been available to her” but it could not answer “definitively” about the outcome of any assessments. The Panel accepted this.
    • There had been significant delays in the Council dealing with Ms X’s complaints.
  16. The Panel said it was not the “correct forum” to consider the legal status of Y. The Panel recommended the Council re-consider the Investigating Officer’s recommendation regarding the period from 2004 to 2008 when Y was in Ms X’s care. The Panel said the Council should obtain legal advice based on the chronology produced by the Investigating Officer.
  17. The Council wrote to Ms X on 18 December 2018 with its response to the Panel’s findings. The Council repeated its apology for the delays in dealing with Ms X’s complaints. The Council said it had considered what had happened between 2004 and 2008 and concluded that no financial support would have been made available to Ms X during this period. The Council said Ms X had agreed to Y being placed with her in 2004 and Y’s mother agreed to this placement. The Council said this meant Y was not a looked after child but a child in need. The Council also said it had provided some financial support in the form of nursery funding and there had been changes in legislation meaning her entitlement to any support may have been different in the past.
  18. The Council also said that ongoing payments being made to Ms X were not for Special Guardianship Order allowance. The Panel had been concerned that these payments may not be made on an ongoing basis. The Council said Ms X’s social worker would clarify this with her.
  19. Ms X was unhappy with the Council’s response and complained to the Ombudsman.

My findings

Support provided to Ms X and Y by the Council

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. In this case Ms X raised her most recent complaint with the Council in 2014. There is also evidence that she raised a complaint about how a lack of support from the Council in 2011 but the Council failed to respond to this.
  3. I have to take account of delays in the Council responding to Ms X’s complaints and the pressure she was under in caring for Y in deciding how far back I can investigate.
  4. I also have to consider whether I can carry out a fair investigation given the time that has passed since the events complained of. In the intervening period there have been changes in legislation and some of the officers involved are either no longer working at the Council or are unable to clearly recollect reasons for their decisions. However, the Council still has records of what happened.
  5. Taking this into account I can consider what has happened since January 2010.
  6. The Council has provided Ms X with backdated payments of money she may be been entitled to since 2014. The Council has also made ongoing financial payments to Ms X although it has not clarified how long she can expect to continue receiving these.
  7. The backdated payments to 2014 provides a suitable remedy for any injustice caused to Ms X and Y during that period. The uncertainty regarding future payments is unsatisfactory and the Council should take steps to clarify this with the family.
  8. The Investigating Officer found the Council acted “with a degree of under reaction and out with their procedures and good practice”. The Investigating Officer also found it was “not unreasonable to argue that [Ms X’s grandson] would not be in the troubling situation he appears to continue to be in, had the earliest concerns, referrals and interventions been more robustly investigated and assessed”.
  9. There were periods of time between 2011 and 2014 when Y came to live with
    Ms X due to his mother’s behaviour. The Council has accepted that its assessment and support of Ms X and Y’s needs was deficient during this time, and it could not say what would have happened if it had properly considered their circumstances.
  10. I cannot say whether Y should have been considered a “looked after child” during this period or whether he and Ms X should have received more support from the Council, whether financial or otherwise. However, the continued uncertainty Ms X and Y are suffering as a result of the Council’s failure to carry out proper assessments of their circumstances is in itself an injustice. Given the prolonged period involved the Council should make a payment to Ms X to recognise the uncertainty caused.

Council’s delays in handling Ms X’s complaints

  1. The Council has accepted there were significant delays in responding to and dealing with Ms X’s complaints.
  2. It should have taken the Council 65 working days to deal with Ms X’s complaint at stage 2 of the statutory complaints procedure for children. Overall it took the Council over three years to complete this process.
  3. On 21 September 2017 the Ombudsman issued a public report against the Council. We found significant delays in the Council’s handling of a children’s services complaint and asked the Council to:

“provide us with details of measures it has put in place to ensure it meets statutory timescales for investigating children’s services complaints”.

  1. The Council wrote to the Ombudsman on 22 December 2017 and said it had taken the following action:
    • The complaints service has adopted the Council’s IT system to log and track complaints;
    • Engaged a local consultancy, rather than use individuals, to provide experienced investigating officers who are suitably supported by the organisation and who understand the need to complete investigations in timeframe;
    • Planned to carry out a review of processes and documentation during the first quarter of 2018; and
    • In the process of recruiting a manager specifically to lead on children’s services complaints.
  2. Although the Council’s consideration of Ms X’s complaint covers this period there were still delays in the Council responding to her complaint at stage 2. The Investigating Officer issued the final stage 2 report in January 2018 but the Council did not formally respond to Ms X until July 2018.
  3. Even after the Council had been criticised by the Ombudsman in a public report for significant delays in dealing with another complaint the Council took 117 working days to respond to the final stage 2 report in this complaint. This is almost twice as long as the entire stage 2 process should have taken.
  4. I remain concerned about the Council’s arrangements for handling complaints about children’s services within statutory timescales.
  5. The Council has offered to pay Ms X £500 for her time and trouble pursuing her complaint as a result of the delays she encountered. I do not consider this to be sufficient to recognise the extraordinary length of time it has taken the Council to deal with Ms X’s complaint. Therefore, I am recommending the Council make a further payment to recognise the time and trouble and distress caused to Ms X as a result of the Council’s delays in dealing with her complaint.

Agreed action

  1. The Council has agreed to take the following action following my recommendations.
  2. The Council should remedy the injustice caused to Ms X in addition to action it has already taken or proposed to take :by
    • Paying Ms X £1000 to recognise the uncertainty caused to her and Y as a result of the deficiencies in assessments and support provided to the family between 2011 and 2014.
    • Paying Ms X £500 in addition to the £500 already paid or proposed to recognise the time and trouble and distress caused to her as a result of the delays in dealing with her complaint.
  3. The Council should take this action within 8 weeks of my final decision.
  4. I recommended that the Council write to Ms X to set out the Council’s position on future payments she can expect to receive as described in its letter of 16 July 2018. The Council has provided me with a copy of a letter Ms X from February 2019 where it confirmed it would continue to pay Ms X further payments until Y turns 18.
  5. The Council should also take the following action to improve its services:
    • Review all stage 2 complaints dealt with since January 2018 and provide the Ombudsman with details of time taken to investigate these complaints. The timescales given should be calculated from when the complaint was received (if in writing) or agreed (if made verbally) to the date the Council issued its adjudication letter.
    • Provide the Ombudsman with any reports or other relevant documents produced following its review of its children’s complaints processes in the first quarter of 2018.
  6. The Council should provide the information I have requested within 3 months of my final decision.

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Final decision

  1. I have completed my investigation as I have found fault causing injustice. The action I have recommended is a suitable way to remedy this.

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Investigator's decision on behalf of the Ombudsman

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