Summary: The complainant alleges that the Council failed to support her appropriately when caring fulltime for her child’s friend who the Council had said could not return home. The Council has not investigated this complaint, as the complainant has requested. The Ombudsman considers that this is fault by the Council, and he has recommended that the Council now arranges an independent investigation at Stage 2 of the statutory Children Act complaints procedure. The Council has agreed to do so and therefore the Ombudsman is closing the complaint.

The complaint

1. The complainant, who I refer to as Mrs X, complains that the Council has failed to provide appropriate support to her when looking after a young teenager who the Council had said should not remain at home with his family. I refer to the teenager as Child B.
2. Child B has given Mrs X consent for her to pursue a complaint on his behalf in addition to the complaint which Mrs X is making in her own right.
3. This lack of support from the Council has caused Mrs X and her family financial and other difficulties. Mrs X says that it was becoming more and more difficult to pay for Child B and was becoming desperate for financial support and thought about ending “the arrangement” because of this. Prior to the recent pandemic and lockdown, Child B went to stay with a college friend. During this period a new social worker appeared who made arrangements for Child B to leave Mrs X’s care and collected his belongings in person.
4. In respect of Child B, Mrs X says that he has missed out on vital short and long-term support from the Council at a very difficult time in his life.
5. Mrs X has complained to the Council, but it has been unwilling to pursue her complaint through the Children Act 1989 statutory complaints procedure.

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What I have investigated

6. I am investigating the way the Council has managed Mrs X’s complaint. I am not investigating the substantive matters.

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The Ombudsman’s role and powers

7. 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)
8. 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

9. I have considered the Council’s responses to Mrs X’s complaints and I have spoken to Mrs X on the telephone. I issued a draft decision statement to both the Council and to the complainant and considered their further comments before reaching my final decision.
10. 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 our final decision with Ofsted.

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What I found

Statutory complaints procedures

11. 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. The Council has to investigate the complaint subject to certain restrictions.
12. 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 a detailed independent investigation of the complaint. The Council may also appoint an Independent Person (IP) to oversee the investigation. At the final stage, an independent Complaints Review Panel can consider the complaint and make recommendations to the Council.
13. Once the complainant has completed the statutory complaints procedure, he/she can refer the complaint to the Local Government Ombudsman, if they remain dissatisfied.
14. Section 26(3) of the Children Act 1989 says all functions of the local authority under Part 3 of the Act (services to children in need) may form the subject of a complaint under the statutory complaint’s procedure. This might cover an unwelcome or disputed decision; concern about the quality or appropriateness of a service; attitude or behaviour of staff and application of assessment criteria.
15. The Getting the Best from Complaints Guidance 2006 provides detailed guidance on how councils should conduct investigations into complaints.
16. The Ombudsman takes the view that complainants should exhaust the statutory complaints procedure before he will consider a complaint. He is normally 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.
17. 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.
18. The guidance also says that someone can complain to the Ombudsman at any time. The Ombudsman might exercise discretion to investigate but we are unlikely to do so unless the criteria is met in Annex 3.
19. In March 2015, the Ombudsman issued a Focus Report about children’s social care complaints. Among other things, he stated that the Children Act statutory complaints process should be adhered to.

Child protection

20. Section 47 of the Children Act 1989 (the Act) provides that a local authority (council) has a duty to investigate, where there is reasonable cause to suspect that a child is or is likely to suffer significant harm.
21. Working Together to safeguard children: A guide to inter-agency working to safeguard and promote the welfare of children’ (March 2015) provides guidance about child protection investigations for all agencies. Council social workers have a statutory duty to lead assessments which should be holistic in approach. Where concerns are considered valid, a multi-agency conference will decide if a child is suffering or likely to suffer significant harm and whether a child protection or a child in need plan is required.
22. If a child or young person cannot remain at home safely, under s20 of the Children Act, a council must provide suitable accommodation with the parents’ consent. Under s20, parents retain their parental responsibility and can remove their child from accommodation if they wish.
23. Councils can place children and young people with relatives and friends if it is considered that is in their interest. Councils must assess the suitability of these placements and can support them financially in certain circumstances.
24. A young person 16 or over can request to be accommodated by a council without his/her parents’ consent.

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What I found

25. Child B is a good friend of Mrs X’s son and had been since junior school and they remained good friends all through secondary school.
26. Mrs X says that Child B was having problems at home. The Council became involved and child protection procedures were started. Mrs X says that, on instructions from the Council and with a social worker present for safety reasons, she collected Child B’s belongings from his home.
27. Mrs X says that the Council told her that she would be regarded as a family foster carer and supported by the Council accordingly.
28. Child B remained with Mrs X and her family. She says that the Council continued to view Child B as a child in need after Child B had come to live with her family and six months later ended the child protection process.
29. Mrs X asked the Council for financial and other assistance in caring for Child B. The Council encouraged both Mrs X and Child B to wait until Child B turned 16, upon which time he could put himself into care.
30. Child B received some legal advice about his options as he was approaching 16. Mrs X says that the Council asked Child B to sign a document which said he would be returning to his birth family. Child B’s solicitor advised him not to sign this and he did not. Mrs X says that the Council offered Child B further legal advice, but it failed to follow this up.
31. Mrs X says that the Council changed its mind about the legal status of the placement. It told her that Child B had been placed with her as a ‘private’ matter between her and Child B’s mother. Therefore, the Council said that it had no responsibility to support the placement financially.
32. Mrs X says that the opposite was the case; Child B’s mother objected to the placement stating that the social worker had told her that “she had no choice”. Child B’s mother also provided no financial support to Child B.
33. Once Child B reached 16, Mrs X says that the Council then told her it was now for Child B to request to be accommodated under s20. Mrs X says that Child B had no support in doing this and it was difficult for him especially as the social workers made unannounced visits at school during term time which he found embarrassing and disruptive.
34. Mrs X says that the Council started the connected carer process and she and her husband took time off work and attended several meetings and completed various paperwork including the necessary safety checks. However, the process was abruptly halted with no explanation.
35. Mrs X complained to the Council. It was unwilling to progress Mrs X’s complaint to Stage 2 of the statutory Children Act complaints process. Mrs X complained to the Ombudsman. The Council told the Ombudsman that there would be no point in progressing the complaint through the statutory process.
36. The Council did agree to appoint an advocate for Child B, as Mrs X had requested. This has now happened, and Mrs X understands that Child B has requested and agreed to be accommodated under s20. Mrs X considers that, if this had happened earlier, when Child B originally came to live with her family, the Council would have had to regard her as a family foster carer and she and Child B would have received the support which they required.

Analysis

37. I have only considered how the Council has dealt with Mrs X’s complaint.
38. Mrs X complained to the Council about how she had been treated by the Council, having agreed to care for Child B. She considers that she was misled about the support she might receive as a carer for Child B and has therefore been let down by the Council.
39. I consider that Mrs X’s complaints were ones which the Council should have progressed through the Children Act statutory complaint process. I also consider that the Council has wrongly blocked Mrs X from having her complaint properly considered under the statutory process.
40. Therefore, my view is that the Council has been at fault causing avoidable distress and frustration to Mrs X.
41. In addition, Mrs X now has Child B’s consent to pursue a complaint on his behalf. However, it will be for the Council to assess whether any complaint investigation should include a complaint from Child B as well.

Agreed action

42. The Council has agreed to appoint a Stage 2 investigator and independent person and progress Mrs X’s complaints through the Children Act statutory complaints process.
43. I have recommended that the Council should be able to commission a Stage 2 investigation within six weeks of the final decision statement.

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Final decision

44. The Council has been at fault in not progressing Mrs X’s complaint through the statutory complaints process. But it has now agreed to do so. Accordingly, I am satisfied that this resolves the complaint and the Ombudsman has now completed his investigation.
45. If Mrs X is dissatisfied with the final outcome of the Council’s investigation, Mrs X can resubmit her complaint to the Ombudsman.

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Parts of the complaint that I did not investigate

46. I have not considered the substantive matters.

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Investigator's decision on behalf of the Ombudsman