Summary: Miss X complains the Council failed to make payments for the entire period she looked after her granddaughter after her foster care placement ended. The Council has not considered the complaint at stage two of the statutory complaints procedure and there are no grounds for the Ombudsman to consider the complaint before the stage two investigation is completed. The Council should now conduct a stage two investigation.

The complaint

1. Miss X complains the Council failed to make payments for the entire period she looked after her granddaughter after her foster care placement ended.
2. Miss X says she was unable to work while her granddaughter lived with her and was caused financial difficulties.

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The Ombudsman’s role and powers

3. 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)
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)
5. Under the information sharing agreement between the Local Government 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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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

The Statutory Children Act 1989 complaints process

7. The Children Act 1989 and the Representations Procedure (England) Regulations 2006 provides that, those in receipt of certain services, can make representations or complaints to the Council. A council has to investigate the complaint subject to certain restrictions.
8. There are timescales for the consideration of social care complaints under the above procedures. The guidance Getting the Best from Complaints 2006 provides detailed advice on how councils should conduct investigations.
9. There are three stages to the statutory social services complaints 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.
10. At each stage, the complainant has the right to ask for the complaint to be considered at the next stage of the procedure.
11. If, after receiving the Council’s final response, the complainant remains dissatisfied, he can submit a complaint to the Ombudsman.
12. The Ombudsman takes the view that complainants should exhaust the statutory complaints procedure before he will consider a complaint. He is the final point in the statutory complaints process. Therefore, councils should ensure that complainants are given the opportunity to have their complaints considered at all three stages.
13. Annex 3 of the guidance describes the circumstances in which a council can make an early referral to the Ombudsman. This can only happen if there has been a robust stage 2 report, the complaints have all been upheld and the majority of the complainant’s desired outcomes have been met.
14. The guidance also says that someone can complain to the Ombudsman at any time. The Ombudsman might exercise discretion to investigate in certain but rare circumstances.
15. In March 2015, the Ombudsman issued a Focus Report about children’s social care complaints. He found that a common problem was a refusal by councils to allow complainants to go through all stages of the statutory complaints procedure. In this report, it was clarified that the Ombudsman would be unlikely to accept complaints brought early except if the early referral criteria had been met.

Key facts

16. Miss X’s granddaughter was living with a foster carer after her mother agreed the Council could accommodate her. This is known as section 20 consent. In November 2017, the mother withdrew section 20 consent and so the Council no longer had the legal power to accommodate her.
17. Miss X says the Council asked her to look after her granddaughter. Miss X says she reluctantly agreed to look after her granddaughter despite her very challenging behaviour.
18. Miss X says she asked the Council regularly for financial assistance. She worked on a zero hours contract and found it difficult to work while her granddaughter was living with her. The Council made some payments in December 2017 but not a weekly fostering allowance.
19. The Council says it asked Miss X’s daughter to give it section 20 consent to place her daughter with Miss X but she did not do this until March 2018. The Council then began paying Miss X a fostering allowance.
20. Miss X complained about the Council’s refusal to backdate the fostering allowance to November 2017 when her granddaughter came to live with her.
21. The Council considered Miss X’ s complaint and explained as it did not have section 20 consent her granddaughter came to live with Miss X in November 2017, it had no legal powers to pay a fostering allowance. The complaint response did not say Miss X could ask for her complaint to be considered at stage two of the statutory complaints process.
22. The Council has not progressed the complaint to stage two. It considers there is little justification in incurring the time and public expense of a stage two investigation and then a possible stage three process, when the matter at the heart of the complaint is a legal one. The Council believes the issue at the heart of Miss X’s complaint, ie, that she is entitled to a fostering allowance, is a legal matter and so cannot be resolved by the statutory complaints process.
23. After sending my draft decision to the Council, it offered to pay Miss X £2,000 as a goodwill gesture instead of doing the stage two investigation. Miss X says she is insulted that the Council is trying to buy her off and has declined the offer saying the Council should investigate her complaint.

Analysis

24. I have carefully considered the Council’s comments about it not conducting a stage two investigation. I am satisfied the matter complained of should be considered through the statutory complaints process. The Council has not put forward any argument to suggest this is not the case.
25. The Ombudsman’s position is clear about when we will consider a complaint when the statutory process has not been completed. I am not persuaded this complaint meets the criteria of an early referral to the Ombudsman as there has not yet been a stage two investigation.
26. I therefore consider the Council is at fault for not considering this complaint at stage two of the statutory complaints process.

Agreed action

27. Within one month of my final decision the Council should make the necessary arrangements to begin a stage two investigation and contact Miss X to notify her of the arrangements and the process that will be followed.

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Final decision

28. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman