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Buckinghamshire Council (21 001 765)

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

Decision : Upheld

Decision date : 06 Sep 2021

The Ombudsman's final decision:

Summary: Mrs B complained about the actions of the Council in dealing with her complaint about a child protection investigation. The Council and Mrs B asked the Ombudsman to consider the complaint, as an early referral, after stage two of the procedure had been completed. We did not agree that the early referral criteria have been met. The Council has agreed to hold a stage three review panel and pay Mrs B £150 for the delay in completing stage two.

The complaint

  1. Mrs B complained about the actions of the Council in dealing with her complaint about a child protection investigation into her care of her grandchildren as their Special Guardian. The Council and Mrs B asked the Ombudsman to consider the complaint, as an early referral, after stage two of the procedure had been completed. This was two years after Mrs B first complained to the Council. She has been caused significant distress and time and trouble in pursuing the complaint.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. I have considered the complaint and the documents provided by the complainant, and the Council. I have also considered the guidance on the statutory children’s complaints procedure, the Ombudsman’s focus report ‘Are we getting the best from children’s social care complaints?’ published in March 2015 and guide for practitioners about the statutory complaints procedure published in March 2021. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  2. Under our information sharing agreement, we will share the final decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Statutory complaints procedure

  1. The law sets out a three-stage procedure for councils to follow when looking at most complaints about children’s social care services. The accompanying statutory guidance, Getting the Best from Complaints, explains councils’ responsibilities in more detail.
  2. The guidance says who can complain and what they can complain about. This includes disputed decisions, concerns about the appropriateness of a service, and the application of eligibility criteria.
  3. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
  4. 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 stages two and three if that is the complainant’s wish.
  5. At stage two of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel.
  6. The guidance says review panels are designed to:
    • listen to all parties;
    • consider the adequacy of the stage two investigation;
    • obtain any further information and advice that may help resolve the complaint to all parties’ satisfaction;
    • focus on achieving resolution for the complainant by addressing their clearly defined complaints and desired outcomes;
    • reach findings on each of the complaints being reviewed;
    • make recommendations that provide practical remedies and creative solutions to complex situations;
    • support local solutions where the opportunity for resolution between the complainant and the council exists;
    • to identify any consequent injustice to the complainant where complaints are upheld, and to recommend appropriate redress; and
    • recommend any service improvements for action by the council.
  7. The Ombudsman would normally expect a council and complainant to follow the full complaints procedure. The guidance sets out the circumstances in which a complaint can be referred to the Ombudsman without completing all three stages. This can only happen when the stage two investigation is robust with all complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.
  8. In the focus report referred to in paragraph four above, the Ombudsman found that a common problem was a refusal by councils to allow complaints to go through all stages of the statutory complaints procedure. In this report, he clarified that the Ombudsman would be unlikely to accept complaints brought early except where the criteria in paragraph 12 had been met.
  9. We published a guide for practitioners about the statutory complaints procedure in March 2021. This reiterated our expectation that complaints should progress through all three stages of the procedure. It said the decision about progressing the complaint lies with the complainant and not the council. Neither the regulations nor the guidance allow a council to refuse to progress a complaint because it believes there is no worthwhile outcome to be achieved.

What happened

  1. Mrs B and her partner have been special guardians for Mrs B’s two grandchildren since 2014. Following an incident in September 2018 involving Mrs B’s daughter (the mother of the two children), the Council undertook a child protection investigation as it believed the children were at risk of significant harm.
  2. As a consequence of the investigation, Mrs B who was also worked for the Council, was suspended from her job. Following a child protection conference, the children were placed on a child protection plan. At a review conference in January 2019 the Council decided to keep the plan in place. Mrs B appealed against this decision and asked for the reasons why the Council considered the children were still at risk of significant harm.
  3. Mrs B received no response to her appeal or request for information. In March 2019 she submitted a formal complaint. The Council responded at stage one of the statutory complaints procedure. On 1 May 2019. Mrs B disputed many aspects of the response and asked to escalate her complaint to stage two on 26 May 2019. The Council appointed an investigating officer (IO) and an independent person (IP) who met with Mrs B in June 2019. A statement of complaint was agreed in July and signed in August 2019.
  4. Officers were interviewed between September and November 2019 and the IO issued their final report on 13 January 2020. They upheld 23 of the 38 parts of the complaint and made 34 recommendations.
  5. The IO accepted that the stage 2 investigation had been completed outside the statutory timescale of 65 working days which was regrettable and explained this had been due to the complexities of the complaint and availability of officers.
  6. The IO upheld the complaint that information in the SGO and the support plan should have been checked by social workers before decisions were made at the ICPC. Specifically, they said:

“…irrespective of the ICPC [initial child protection conference] decision the Investigating Officer notes that court order and SGO [special guardianship order] plan should have been seen not least by the Social Worker prior to the ICPC and properly referenced within the social work report. In addition, if ordinarily the SGO Order grants PR [parental responsibility] to the person(s) named, it follows that it would remain within their decision making whether to leave the children with another adult unless restrictions were expressly set out to the contrary in the Order. Therefore, if the Social Worker had made sufficient enquiries there is a question as to whether there would have been such an emphasis on [Mrs B] leaving the children especially, as [Mrs B] had not left the country recklessly given [her partner] was at home... Had Children’s Services reviewed the SGO they would have been able to make the relevant enquiries”

  1. The Council sent its adjudication letter to Mrs B on 6 March 2020, agreeing with all the findings, offering an apology and £2000 to Mrs B and an assurance that it would improve its procedures for the future.
  2. The Council says Mrs B requested a meeting in June 2020 with the Council. Due to the COVID19 restrictions it offered a telephone call, but Mrs B wished to wait until a face-to-face meeting was possible.
  3. On 15 September 2020 Mrs B emailed the Council: she rejected the £2000 as insufficient and raised a number of points she wished to discuss. She said the ‘unwarranted social care investigation’ had impacted significantly on the whole family. She said without the misguided social care investigation the impact on her employment would not have been so severe.
  4. The Council held a conference call with Mrs B, the Service Director and the Statutory Complaints Officer on 23 October 2020. They discussed aspects of the report including the level of compensation offered, Mrs B’s view that there were a lot of inaccuracies in the facts, the impact of the process on her loss of employment and the level of SGO allowances.
  5. Mrs B agreed to provide details of the SGO allowances and her expectation regarding a financial payment. The Council would then review both issues.
  6. Mrs B provided the information in January 2021. She requested ‘a payment of £10,000 for the lack of professional knowledge, poor practice, poor management oversight, failure to adhere to legislation in parts and lack of consistency in the approach used by [the Council] during the handling of [the] case, as highlighted in the outcome of the Stage 2 Complaint which has been acknowledged and accepted by [the Council]’. She said it had led to life-changing circumstances for the whole family, along with two years of anxiety, stress and turmoil, time and trouble and health issues.
  7. She also said one issue remained outstanding: the reasons why the children remained on the child protection plan in January 2019. She believed this was an important factor in the Council not letting her return to work.
  8. On 26 January 2021 Mrs B requested escalating her complaint to a stage three panel. The Council gave Mrs B the option of a stage three panel or referring the case straight to our office. It said:

“Please note that the Stage 3 panel will not reinvestigate your complaints, they will instead come to a determination as to whether the Stage 2 investigation was adequate and may make further recommendations to the Council (based on any faults they find with the Stage 2 report), which Children's Services may or may not accept. 

To clarify further, a Stage 3 panel need to understand what fault you believe exists with the Stage 2 investigation and the report completed by the investigating officer.  They will only consider those points that were not upheld and would not be able to give any direction in respect of compensation.”

  1. On 16 February 2021 the Council responded to Mrs B about the SGO allowances. It said she was not entitled to any further money. The first two points were too old to pursue now and the third related to recent payments since she had lost her job. It said it would not backdate the allowance to the date she lost her job because she had not informed the Council of this fact for six months.
  2. On 1 March 2021 Ms B requested a letter to refer the case to the Ombudsman. The Council provided this on 5 March 2021 and Mrs B complained to us in May 2021.
  3. We initially asked the Council to complete stage three of the statutory procedure as we did not consider the early referral criteria had been met. We also asked it to make a payment for the delay in the process. The Council did not agree to this but provided further information for us to consider.
  4. It accepted there had been delay in stage 2 but only from the date the statement of complaint was signed as that was the start of the 65 working day timescale and it considered the early referral criteria had been met because:
      1. all the significant parts of the complaint had been upheld.
      2. Mrs B has not indicated any disagreement with the points that were not upheld or where no finding was found.
      3. Mrs B only disagreed with the remedy payment and the Council did not believe even if the outstanding parts of the complaint were upheld that it would increase the payment by this amount.
      4. The fundamental reason why the Council became involved with the children is not disputed. Mrs B’s complaints are about the process, not the reason the Council became involved.
      5. The adjudication response to the stage two recommendations formed an action plan.

Analysis

  1. I do not agree that the criteria for early referral of the complaint to us have been met. The stage two report is robust, but the other elements have not been fulfilled:

All significant complaints have been upheld

  1. The Council says all the significant complaints have been upheld. I disagree. The IO made no finding on Complaint 8a which was a significant complaint: Ms B said the social worker and the chair of the ICPC accused her of breaching a court order (the special guardianship order) by letting the children have contact with their mother. The IO could not find a record of this, but upheld complaint 8b: that the Council should have looked at the SGO documents as part of the investigation and in any event before the ICPC took place. It is clear that there was discussion and disagreement about the content of the SGO at the ICPC, which could have been easily resolved by looking at the documents. This appears to be a significant and basic error in the process
  2. Complaints 9a (no finding) and 9b were not upheld. These related to the operation of the ICPC and Mrs B’s treatment within it. These are significant issues which Mrs B still disputes
  3. The stage three review is carried out by an independent panel. So, it is not possible for the Council to say that the outcome would not be any different if the panel was to take place.

Mrs B has not indicated which points she disagrees with

  1. Mrs B said in September 2020 that she disagreed with the payment and did not believe the Council had properly considered the impact of the ‘misguided/unwarranted social care investigation’ on her, her family and her employment situation. At the meeting in October 2020 Mrs B disputed that she had ever seen the SGO plan and there were no signatures to indicate she had seen it. She disputed the Council’s view that the events had had no impact on the children and did not consider the Council had properly considered the impact on her and her partner.
  2. It is evident Mrs B continues to dispute that the Council has properly considered the impact of the flawed investigation, and this is supported by the stage two finding on complaint 8b detailed in paragraph 20 above. This suggests that had the documentation been properly checked, then the investigation may have proceeded in a very different way. The Council has not addressed this point.

Remedy payment

  1. Mrs B does disagree with the remedy payment and wants a much-increased amount. Whether or not this is realistic, I consider the Council has misrepresented the role of the stage three panel when explaining the options available to Mrs B. It said that the Panel cannot comment on compensation. But the guidance makes clear that the Panel can consider injustice and recommend appropriate redress. Given that Mrs B also disagrees that the Council has properly considered the impacts on her of the flawed investigation, there is scope for a Panel to consider the matter further.

Fundamental reason for the investigation

  1. As I have explained above, I consider Mrs B does disagree with fundamental reasons for the investigation, supported by the stage two findings on complaint 8b: if the Council had properly considered basic information before proceeding with the investigation, the outcome may have been different.

Clear action plan for delivery

  1. The Council says its response to the stage two recommendations forms an action plan. I disagree this is adequate. In response to the first recommendation it says:

“The lists of desired outcomes, although lengthy, have been considered in turn and are accepted as important learning points for the service. Some of them relate directly to on-going improvement work that is captured in the service improvement plan. For example those that relate to management oversight and supervision. A number of the deficits in practice highlighted by this complaint can be attributed to the quality and impact of the supervision and line management of this case. It is my expectation that managers do ensure that statutory processes are followed and that the quality assurance arrangements are robust and effective. All of these points are central to our improvement plan and I can assure will be and have been addressed.”

  1. This response is then referenced for 22 of the remaining 34 recommendations. There is no detail as to how the issues have been considered or addressed or any timescales for when they will be or any timeframe for monitoring compliance.

Outstanding /new issues

  1. In addition, I note that there remain two outstanding points not addressed by the stage two investigation:
    • An explanation as to why the child protection plan was continued after January 2019. Mrs B requested this but received no response so had to submit a formal complaint. This issue was not included in the statement of complaint (despite being raised by Mrs B in her email) and remains outstanding.
    • The amount of special guardian allowance she has received since losing her job in November 2019. The Council has responded to her request, but Mrs B has had no further right of redress.

Delay

  1. I agree that the delay since the adjudication response in March 2020 was not due to the Council. I also acknowledge that Mrs B should have requested escalation to stage three within 20 days. But given the COVID19 restrictions and her employment issues, it was reasonable to allow her more time. However, I maintain there was delay at stage two and I consider this amounted to approximately five months. I note the Council’s view that the 65 working days does not begin until the statement of complaint is agreed. However, the guidance indicates this only applies when the complainant has not submitted a complaint in writing which did not apply in this case. In response to my draft decision, the Council has clarified that Mrs B took a month to return the signed statement of complaint. I acknowledge this, but still consider there was unacceptable delay in completing stage two.

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Agreed action

  1. The Council has agreed (within one month of my final decision) to:
    • apologise to Mrs B for failing to progress the complaint to stage three;
    • open and confirm with Mrs B the stage three review panel, with an aim to complete the stage three panel review within three months of the final decision. If this is not possible the Council will advise Mrs B and us of the expected timescale for completion;
    • pay Mrs B £150 for the delay in completing stage two of the procedure; and,
    • remind officers of the criteria under which a complaint can be referred to the Ombudsman without completing stage three.

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Final decision

  1. I consider this is a proportionate way of putting right the injustice caused to Mrs B and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman

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