Summary: Mrs D complained about the Council’s investigation into her complaints about children’s services. She said the Council delayed the complaint investigation, its stage 2 report was not thorough, and it did not arrange a stage 3 review panel. Mrs D said this put her to time and trouble chasing the Council to fulfil its statutory duties. We found fault with the Council causing injustice. The Council will carry out a new stage 2 complaint investigation and pay Mrs D a financial remedy to remedy this injustice. It will also provide staff training.

The complaint

1. The complainant, who I shall refer to as Mrs D, complained about the Council’s investigation into her complaints about children’s services. She said the Council delayed the complaint investigation, its stage 2 report was not thorough, and it did not arrange a stage 3 review panel.
2. Mrs D said this caused her frustration and distress and put her to time and trouble chasing the Council to fulfil its statutory duties.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused an injustice we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
4. When a case has been considered by the statutory complaint procedure, we generally would not reinvestigate the substantive issues. The statutory procedure is designed to provide significant independence and detailed analysis of concerns raised. This means reinvestigation is neither necessary nor warranted unless there are serious and fundamental flaws in the way the case was investigated.
5. 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)
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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How I considered this complaint

7. I considered:
• Mrs D’s complaint and the information she provided;
• documents supplied by the Council; and
• relevant legislation and guidelines.
8. Mrs D and the Council commented on a draft decision. I considered their comments before making a final decision.

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What I found

Legislation and Guidance

9. Section 26(3) of the Children Act, 1989 says all functions of a council under Part 3 of the Act may form the subject of a complaint under the statutory complaints procedure. The Department of Education has published statutory guidance for local authority children’s services on representations and complaints procedures.
10. The Council’s complaints manager oversees the procedure. This includes:
• appointing investigating officers, review panellists and independent persons;
• ensuring there are no conflicts of interest at any stage between parties involved in delivering the procedure; and
• monitoring the progress of the investigation and ensuring its smooth running.
11. The handling and consideration of complaints under the Children Act 1989 consists of three stages.
12. At Stage 1 staff at point of service delivery try to resolve the complaint.
13. At Stage 2 an investigating officer (IO) and an independent person (IP) investigate the complaint. The IP’s role is to ensure the process is open, transparent and fair. The IO produces a stage 2 report which includes:
• details of findings, conclusions and outcomes are against each point of complaint (i.e. “upheld” or “not upheld”); and
• recommendations about how to remedy any injustice to the complainant.
14. A senior manager from the Council should act as Adjudicating Officer (AO) and consider the complaints, the IO’s findings, conclusions, and recommendations, any report from the IP, and the complainant’s desired outcomes. The AO will tell the complainant whether it accepts the IO’s findings and recommendations.
15. At Stage 3, a review panel considers the complaint. The panel must consist of three independent people. Following the panel, the members write a report containing a summary of the representations and their recommendations for resolution of the issues.
16. The Council must send its response to the panel’s recommendations to the complainant within 15 days of receiving the panel’s report. The response should be developed by the relevant Director setting out how the Council will respond to the recommendations and what action will be taken.
17. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. The guidance says once a council has accepted a complaint at stage one, it must ensure the complaint continues to stage two and three, if that is the complainant’s wish.
18. The timescales in working days for the procedure are:
• 10 days at stage 1 (with a further 10 days for more complex complaints or extra time if an advocate is required);
• 25 days at stage 2 (with maximum extension to 65 days);
• 20 days for the complainant to request a review panel;
• 30 days to meet and hold the review panel at stage 3;
• 5 days for the Panel to issue its findings; and
• 15 days for the local authority to respond to the findings.
19. In March 2015, the LGO published a thematic report highlighting learning from its investigations into the Children Act complaints system, ‘Are we getting the best from children’s social care complaints?’. A common issue raised was delay in the complaint procedure. The report gave councils advice about how to avoid this fault.

What happened

20. This chronology includes key events in this case and does not cover everything that happened.
21. Mr and Mrs D care for two children, E and F, under a special guardianship order.
22. In April 2018, E experienced mental health difficulties. Mr and Mrs D asked the Council for support and for E to be accommodated in a foster placement for his own wellbeing.
23. Mrs D complained to the Council in October 2018 about information the Council shared at a strategy meeting for E. Mrs D chased the Council for a response to her complaint in October, November, and December 2018.
24. Mrs D made another complaint to the Council in December 2018. She raised concerns about the Council’s its lack of support in April 2018, and its failure to responded to her October 2018 complaint.
25. The Council’s complaints manager responded in January 2019. He apologised that Mrs D was unhappy with the service she received but defended its actions. He said it would deal with Mrs D‘s complaint about the Council not offering the family support in April 2018 separately. In the letter, the complaints manager did not tell Mrs D about stage 2 of the complaint procedure.
26. Mrs D asked for a stage 2 response to her complaints in February and March 2019. The Council told Mrs D it had resolved her complaint.
27. In April 2019, Mrs D made a new complaint. She said the Council’s assessment for E contained inaccurate information and did not include the views of relevant professionals. She told the Council she felt it dismissed or failed to address her earlier complaints.
28. Mrs D chased the Council for its complaint response in May, June, July, and August 2019.
29. The Council sent Mrs D a stage 1 response to her April 2019 complaint in August 2019. The Council explained its actions and the content of E’s assessment. The Council accepted the use of language in the report was not always appropriate and it needed to amend the assessment, so it was a more accurate reflection of the situation. It told Mrs D it would give staff with training about their use of language. The letter did not tell Mrs D about stage 2 of the complaint procedure.
30. Mrs D asked the Council to progress her complaint to stage 2. The Council arranged for the complaint manager who responded to Mrs D’s stage 1 complaint in January 2019 to be the IO at stage 2.
31. In October 2019, the IO asked Mrs D for a meeting to discuss her complaint statement. The IO and IP met with Mrs D in November 2019.
32. Following the meeting, the IO told Mrs D the Council would not consider her complaints at stage 2 because they were upheld at stage 1. He said he would follow up on the outcomes agreed by the Council at stage 1 and she could progress to stage 2 if these were not completed. He advised he would raise her concerns about individual staff members with their managers and told her that she could contact the Health and Care Professions Council about their practice. The Health and Care Profession Council was the regulator of social workers in England until December 2019 when the responsibility moved to Social Work England.
33. Mrs D asked the Council for an update on the complaint investigation in January and February 2020. The Council emailed Mrs D in March 2020. It told her it was not going to progress with the stage 2 investigation, “I appreciate that you had been informed that a stage 2 investigation would be completed in relation to your complaints, but having reviewed all of the outstanding matters I believe that the actions outlined above acknowledge that there have been failings in the way the case and complaint have been managed and offer a satisfactory resolution.”
34. Mrs D told the Council she wanted her complaint progressed to stage 2. The Council told her she needed to explain her reasons for this. Mrs D said the Council had not responded to all her complaints and she did not agree it had proposed an acceptable resolution to her complaints. The Council agreed to consider her complaint at stage 2.
35. The IO and IP restarted their investigation and completed their reports in August 2020. The result of the IO’s investigation was:
• Complaint 1 that the Council failed to meet E’s needs when the family was in crisis was partly upheld.
• Complaint 2 that an assessment contained information that was inaccurate, unsubstantiated or slanted against Mr and Mr D was upheld.
• Complaint 3 that resolutions to the complaint agreed at stage 1 were not carried out was partly upheld.
36. The Council sent its stage 2 adjudication letter in August 2020. It accepted the IO’s stage 2 findings. It said it would attach Mrs D’s response to the Council’s assessment of E on his case record and apologise.
37. The Council said it would complete the recommendations within 30 working days of the date of the letter.
38. In September 2020, Mrs D asked the Council to progress the complaint to stage 3. The Council told her the panel would only consider the parts of her complaint that were not upheld at stage 2. It advised it was experiencing delays arranging stage 3 panels because of COVID-19.
39. Mrs D chased the Council in January 2021. The Council told her there were delays arranging stage 3 panels. It told her this was because there was a nationwide shortage of independent people to sit on panels.

Analysis

40. Mrs D made her first complaint in October 2018. The Council failed to respond to this complaint until January 2019. This was fault.
41. The Council responded to Mrs B’s October and December 2018 complaints at stage 1 of the statutory children’s complaint procedure in January 2019. The Council’s stage 2 response was delayed by 16 months. The Council did not complete stage 3. The Council says COVID-19 impacted on its ability to hold stage 3 panels. However, if it was not for the Council’s delay, Mrs D’s complaint would have completed all three stages before the pandemic. In total when the Council responded to my enquiries in March 2021, it had delayed the complaint investigation by 19 months. The Council’s delay was fault.
42. The Council tried to prevent Mrs D from accessing stage 2 of the complaint procedure. It told her it had resolved her complaints. Mrs D did not agree and there is no evidence the Council addressed her complaint about the Council not offering the family support in April 2018 at stage 1. If a complainant asks the Council to progress their complaint to stage 2, it must do so. Preventing Mrs D from accessing stage 2 was fault by the Council.
43. The Council changed its mind about whether to consider Mrs D’s complaint at stage 2. As stated above, once the Council accepted Mrs D’s complaint at stage 1 it was obliged to investigate her complaint at stages 2 and 3. Starting and then stopping the stage 2 complaint investigation was fault.
44. The Council failed to tell Mrs D about her right to access the next stage of the complaint procedure if she was dissatisfied in the letters it sent her in January and August 2019. This was fault.
45. The statutory procedure is designed to provide independent oversight. The Council’s complaints manager should ensure there are no conflicts of interest. The complaint manager in this case responded to Mrs D at stage 1 of the complaint procedure. He then took on the role of IO at stage 2. This was a conflict of interest. As the complaints manager responded to the complaint at stage 1, he could not be considered impartial from the complaint and therefore appropriate to take on the role of IO. Failure to promote an independent complaint investigation was fault.
46. Mrs D was caused an injustice by the Council’s faults. She was put to time and trouble chasing the Council and was caused frustration by the delays. The Council put barriers in the way of her accessing her statutory right to have her complaint considered at all three stages of the complaint procedure. She did not get an independent oversight of her complaint and lost confidence in the Council’s statutory complaint procedure. This injustice was significant and avoidable.
47. Mrs D would like an independent investigation of her complaint that addresses all the issues she raised.

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Recommended actions

48. Within one month of the final decision, the Council will:
• Commission independent IO and IPs who have not previously been involved in this complaint or with this family to undertake a stage 2 investigation. The Council should consider using an IO that is not an employee of the Council. After stage 2, the Council should arrange a stage 3 panel if Mrs D wishes. The complaint investigation should adhere to statutory timescales.
• Pay Mrs D £750 for the impact of the delay in the complaint procedure and the time and trouble she was put to chasing the Council.
• Pay Mrs D £250 for the distress caused by the lack of independence in the Council’s statutory complaint procedure.
• Add a copy of the final decision to E’s file.
49. Within two months of the final decision, the Council will:
• Provide training to the complaints team on the statutory complaint procedure. This should include guidance on timescales, the need to tell complainants about the next stage of the procedure and the requirement to progress most complaints through all stages of the procedure.
50. The Council should provide the Ombudsman with evidence these actions have been completed.

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Final decision

51. I have completed my investigation and uphold Mrs D’s complaint. Mrs D was caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman