Summary: Mrs X complained the Council considered her complaint through the children’s statutory complaint procedure but failed to provide Special Guardianship payments it owed her, or explain why her grandchildren remained on a child protection plan for longer than necessary. The Council was at fault for failing to properly consider Mrs X’s complaint about the matters and for failing to identify the payments it owed Mrs X. The Council agreed to pay Mrs X the £8,838.88 in special guardianship payments it owes and £500 to recognise the frustration, confusion and time and trouble caused to her by its faults.

The complaint

1. Mrs X complained that despite considering her complaint about a child protection investigation through the children’s statutory complaint procedure, the Council failed to:

• issue her payments it owed her for a special guardianship order; and
• to explain why her grandchildren remained on a child protection plan for longer than necessary.

2. Mrs X states this caused her frustration, distress and a financial loss of the money she is owed.

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What I have and have not investigated

3. I have investigated how the Council considered Mrs X’s complaints about the payments for a special guardianship order and the child protection plan.
4. I have not investigated the Council’s actions in deciding what to pay Mrs X. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide further investigation would not lead to a different outcome. The Council has identified fault in how it decided to pay Mrs X for the special guardianship order and has offered Mrs X the payments she has asked for. Further investigation of that point would not likely lead to a different outcome.

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The Ombudsman’s role and powers

5. 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)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. If we are satisfied with an organisation’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)
9. 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

10. I read the documents provided by Mrs X and I discussed the complaint with her on the telephone.
11. I read the documents the Council provided in response to my enquiries.
12. I considered our Guidance on Remedies, which is available on our website.
13. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Child protection and child in need

14. Under section 47 of the Children Act 1989, where a council has reasonable cause to suspect that a child in their area is suffering or is likely to suffer significant harm, it has a duty to make enquiries to decide if it needs to take any action to safeguard or promote the child’s welfare.
15. If concerns of significant harm are substantiated following section 47 enquiries, an initial child protection conference (ICPC) should be arranged. This is a multi-disciplinary meeting whose attendees decide what action is needed to safeguard the child. The ICPC may decide to make the child the subject of a child protection plan which details what action is necessary to reduce the risk of harm.
16. After the ICPC, if the decision is to place a child under a child protection plan, there will be core group meetings with the professionals and family to assess progress. There should also be review child protection conferences (RCPC). These consider whether the child protection plan should be maintained, amended, or discontinued. Where it is considered appropriate the council can decide to step the child protection plan down to a child in need plan.
17. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need of help and support. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent or carer. Councils should review child in need plans regularly.

Complaints about child protection conferences

18. The Council has an information leaflet for parents and families that explains the process of Child Protection Conferences (CPC). It says any complaints should be sent to the Chair of the conference by letter or email within five days. The Chair would then meet with the family to discuss the complaint and work towards a resolution.
19. The Council’s Safeguarding Children Partnership policy entitled Child Protection Conferences: Procedure says any complaint about the process or outcome of a CPC should be addressed to the conferencing manager.

Private Family Arrangements and Special Guardianship Orders

20. A private family arrangement is where a child lives with a close family member such as a grandparent by arrangement between the parent and the family member. The parent is still responsible for the child financially and the new carer is not automatically entitled to support form the Council. The parent does not have to notify the Council about a private family arrangement.
21. In some circumstances a council, which is on the verge of having to provide accommodation for a child, may be able to 'side-step' that duty by helping to make a private family arrangement. Usually, a private family arrangement will come about as the result of clear discussions between the proposed care and either the child's parent(s) or a person with parental responsibility. (London Borough of Southwark v D [2007] EWCA Civ 182)
22. Special Guardianship is an order made by the Family Court that places a child or young person to live with someone other than their parent(s) on a long-term basis. The person with whom a child is placed will become the child’s Special Guardian.
23. Government guidance on the Special Guardianship Regulations sets out the circumstances in which councils should provide financial support to a Special Guardian. These include situations where there is a financial obstacle to a guardianship arrangement being made, and where the child requires special care. There is no overall obligation on councils to provide support in every case in which a Special Guardianship Order (SGO) is made.

Children’s statutory complaint process

24. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail. The council should consider a complaint at all three stages if asked to do so by the complainant.
25. The first stage of the procedure is local resolution where the council responds to the complaint.
26. The second stage is an investigation by an investigator appointed by the council, and an independent person who is responsible for overseeing the investigation.
27. The third stage is a review by an independent panel. The council must hold the panel, and then issue a final response within 20 days of the panel hearing.
28. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the investigation.
29. The procedure sets out which types of complaints can be considered through the statutory procedure. Generally, assessments and services for children in need (Children Act 1989, section 17) and Special Guardianship support should be considered whereas child protection enquiries and conferences would not.
30. The Ombudsman published a focus report in 2015 highlighting common failings in the way councils deal with complaints that are within the remit of the children’s statutory procedure. In 2021 further guidance for practitioners was issued setting out our expectations on how statutory complaints should be handled and managed. The guidance states councils are likely to receive complaints where there is an overlap between those areas which are inside and outside the scope of the procedure. The guidance explains councils can use their discretion to consider all parts of a complaint in a single investigation and response. Complainants should not be disadvantaged by any overlap between complaint procedures.

What happened

Background information

31. I investigated the Council’s actions concerning its statutory children’s complaint procedure and follow up actions. I have set out the earlier events as context to my investigation.
32. Mrs X has two grandchildren. In August 2014 due to concerns about the children’s care the Council placed them in Mrs X’s, and her partner Mr T’s care. An SGO was issued to Mrs X and Mr T for the children in July 2015. The Council began paying Mrs X an SGO allowance.
33. At the beginning of September 2018, due to concerns about the children staying with their mother overnight, the Council raised a safeguarding enquiry. It held an ICPC in October 2018 which decided the children should be under a child protection plan.
34. In January 2019 the Council held an RCPC and decided the children should remain under a child protection plan. Mrs X appealed to the Council about its decision. She asked for an explanation of who or what the children were in need of protection from. The Council did not respond to Mrs X.
35. The Council decided at an RCPC in May 2019 the children no longer met the threshold for child protection, and therefore decided they could be stepped down to a child in need plan.
36. The Council closed the child in need plan in August 2019 as it decided the children no longer needed any support from it.
37. In November 2019 Mrs X lost her job. She said she phoned the Council and told it this. In July 2020 the Council reassessed Mrs X’s finances and increased the SGO support it paid her. It backdated the payments to May 2020 which is when Mrs X filed her reassessment forms.

Mrs X’s complaints to the Council

38. Mrs X made a formal complaint to the Council in March 2019 about the way it had handled the child protection enquiry. She said it had not responded to her appeal request against the RCPC decision to maintain the child protection plan.
39. The Council responded to Mrs X’s complaint at stage one of the statutory complaints procedure in May 2019. It provided commentary on each point but did not say if it upheld Mrs X’s complaints or not. It said it had no record of Mrs X appealing the RCPC decision. It said, ‘there was evidence that [Mrs X] could not always take decisions that would protect the children from emotional harm or ensure that they had the right level of supervision’. It said Mrs X needed to complete further work to better understand potential risks to the children.
40. Mrs X asked the Council to consider her complaint at stage two at the end of May 2019 as she was dissatisfied with the Council’s response.
41. The Council appointed an Investigating Officer (IO) and an Independent Person (IP). They met with Mrs X and set out the statement of complaint in August 2019. There were 38 points of complaint about how the Council handled the child protection enquiry and resulting actions, and about its stage one complaint response. The complaint included the Council had not followed the proper procedure when Mrs X appealed the RCPC decision.
42. Mrs X wanted compensation for the impact of the child protection plan on her and her family and back payments for SGO allowance from 2014 the Council had not paid her.
43. The IO considered all of the available documentary evidence, interviewed key Council staff members, and Mrs X. The investigation upheld 23 elements of complaint and partly upheld 1. It did not uphold 5 and made no finding on 9 elements.
44. The investigation found the Council did not properly consider Mrs X’s appeal about the RCPC decision. It said it could not comment on the RCPC decisions as it would be considered in a different process.
45. The IO declined to comment on Mrs X’s request for SGO back payments. They recommended the Council should respond directly to Mrs X on that point, apologise for the upheld complaints and offer compensation for the distress caused in line with our guidance on remedies.
46. The Council wrote an adjudication letter to Mrs X in March 2020. It agreed with the IO’s findings and accepted the recommendations. It apologised for the upheld complaints and offered Mrs X £2,000. It did not comment on the SGO payments.
47. The Council met with Mrs X in October 2020 to discuss the stage two response. Mrs X said £2,000 was not enough and requested £10,000 to acknowledge the impact of all the upheld complaints. She said the Council had not paid her SGO payments properly in 2014 and had not backdated the increased SGO payment to when she lost her job in November 2019. The Council told her she should raise it in a separate complaint process she was involved in.
48. In November 2020 the Council told Mrs X it would not consider the SGO back payment through the separate complaint process.
49. The Council considered Mrs X’s appeal against the RCPC decision from January 2019. It wrote to her in January 2021 and apologised for the delay. It said it upheld the RCPC’s decision to maintain the child protection plan. It said ‘there were worries expressed by the social work team in the updated assessment about the extent you understood the impact on the children of your daughter’s difficulties and your decision making as a result.  I note that all professionals attending the review conference recommended a further Child Protection Plan and from the comments recorded this was to allow for further assessments to take place before the plans were ended’.
50. The Council told Mrs X it would review the SGO payments, but a payment of £10,000 was not justified. Mrs X asked the Council what the next step of the complaint procedure was. The Council suggested an early referral to the Ombudsman and Mrs X registered the complaint with us.
51. The Council reviewed the SGO payments. In February 2021 it told Mrs X:
• it did not place the children with her and had not assessed her as a carer and therefore she was not entitled to SGO payments in 2014; and
• it had not backdated an increase in SGO allowance to when Mrs X’s employment ended as she had not told it about the change for six months.
52. The Ombudsman told the Council an early referral was not appropriate in September 2021, and it should hold the stage three panel hearing in line with the statutory process. We also recommended the Council pay Mrs X a symbolic amount to recognise the delay in the statutory procedure up to that point.
53. Mrs X told the Council she wanted the stage three panel to consider the delay in the RCPC appeal and the insufficient explanation. The Council told Mrs X the delay was upheld at stage two and it had since responded to the appeal and she could not appeal it further.
54. Mrs X’s submission to the stage three panel raised a number of points including:
• the financial payment was insufficient and she requested £10,000 for the injustice and the missed SGO payments and back payments;
• the Council had a signed written agreement Mrs X would look after the children from August 2014 and so the Council had placed the children with her; and
• the Council had not explained why the children had remained on a child protection plan in January 2019.
55. The review panel was held in November 2021. It focussed on the compensation and financial issues. It said it could not consider the RCPC appeal as it was reviewed through a separate mechanism. It said the Council should:
• further investigate if Mrs X was entitled to SGO payments in 2014;
• further investigate the SGO allowance from November 2019 to May 2020. Mrs X said she had told the Council of her change of circumstances in November 2019 in a phone call. It further qualified that, ‘irrespective of the documentation found, if the circumstances are demonstrated to have been as described by [Ms X] in her submission, then backdated payment should be made as requested by her’; and
• offer Mrs X £6,000 to recognise the injustice caused to her and her family by the upheld complaints.
56. The Council wrote to Mrs X and said it would complete the further investigation. It offered Mrs X £6,000 to recognise the impact of the upheld complaints.
57. The Council wrote to Mrs X in January 2022. It said it had reviewed the SGO payments. It gave the same response as in February 2021 outlined at paragraph 51. It did not say if there was a record of Mrs X contacting the Council by phone.
58. Mrs X complained to us in June 2022. She said the Council had still not provided a valid reason why her grandchildren remained on a child protection plan in 2019 and refused to pay her any SGO back payments.

The Council’s response to my enquiries

59. In response to my enquiries the Council reviewed its decision about Mrs X’s claim to SGO payments in 2014. It said it had found fault in its own actions. It said it had placed the children with Mrs X in August 2014 and failed to regulate the placement. It said it had offered to pay Mrs X £5,810.70 which was the amount she should have received. It also said it:
• holds regular workshops to ensure that social workers understand the difference between a private arrangement and when a child or young person has effectively been accommodated, even if a parent or guardian has not signed agreement;
• holds a weekly panel to review all arrangements where children are likely to be placed in to care to ensure that decisions are made in a timely manner and legal advice sought where necessary.
60. It also acknowledged it had been inconsistent in how it recorded financial matters since November 2019 in Mrs X’s case. It said there was an undated record of Mrs X phoning the Council in 2019. On the balance of probabilities Mrs X had told it of the change in circumstances in November 2019. It said it would offer Mrs X £3,028.18 which is the increased SGO allowance backdated to November 2019.
61. The Council acknowledged it did not consider the RCPC decision properly and it had not addressed it through the subsequent complaint process, and it will sincerely apologise to Mrs X about that matter.

My findings

62. Following the stage three panel the Council offered Mrs X a symbolic financial payment of £6,000 to recognise the impact of the upheld complaints on her and her family. I have reviewed the investigation’s findings and our Guidance on Remedies and agree that is an appropriate remedy for this injustice. Mrs X declined to accept that payment while she waited for the outcome of the SGO payment reviews and her complaint to us.

Special Guardianship Order Payments

63. The Council failed to recognise or regulate the placement of the children with Mrs X at first and it failed to pay Mrs X properly from August to December 2014 which was fault and caused Mrs X financial loss. It has offered Mrs X the £5,810.70 which is the amount she would have received had the Council acted without fault.
64. The Council was inconsistent in recording financial information in Mrs X’s case and on the balance of probabilities Mrs X did inform it she had lost her job in November 2019. The Council’s failure to keep full and accurate records is fault and caused Mrs X frustration and a financial loss. The Council’s offer to apologise and pay the amount she would have received but for the fault is an appropriate remedy, in line with our guidance on remedies.
65. I have therefore not investigated these points further as it would probably not lead to a different outcome.

Explanation of the child protection decision

66. Mrs X complained the Council failed to adequately explain through the complaint process why the RCPC decided to maintain the child protection plan in January 2019. The Council offered an explanation in its stage one response, and when it considered the appeal against the RCPC decision in January 2022. Although Mrs X does not agree with the decision, I do not find any fault in the Council’s explanation.

Complaint handling

67. The guidance states councils can use their discretion to consider all parts of a complaint in a single investigation and response. Complainants should not be disadvantaged by any overlap between complaint procedures.
68. The Council’s internal policies and its leaflet to parents about CPC and the appeal process contradict each other. The leaflet states people should appeal to the conference Chair and the policy states they should appeal to the conference Manager. That is fault, and it caused Mrs X frustration as the Council did not recognise or respond to her appeal of the RCPC decision for two years.
69. The Council was aware it had not considered Mrs X’s appeal of the RCPC decision when it began the stage two investigation. Mrs X complained about the SGO payments during the statutory process. The Council should have considered Mrs X’s complaints about the RCPC decision and SGO payments through the statutory complaints procedure. It did not and that was fault, it caused Mrs X frustration and confusion and delayed Mrs X’s complaints being finalised for four years altogether.
70. Mrs X initially raised her complaint about the SGO payments in March 2019. The Council reviewed the information three times but failed to recognise the fault in its actions until the final review in December 2022. The failure to identify the faults at the earliest opportunity is further fault and caused Mrs X frustration and time and trouble in pursuing her complaint.

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Agreed action

71. Within one month the Council agreed to:
• re-offer Mrs X the £6,000 for the impact of the upheld complaints by the children’s statutory complaint procedure;
• pay Mrs X the £8,838.88 it has identified in missed SGO payments;
• apologise to Mrs X for the confusion, frustration and time and trouble caused to her by the Council’s failure to consider all matters through the statutory complaints procedure and to identify the faults in its actions at the earliest opportunity. It will pay her a symbolic amount of £500 to recognise the same.
72. Within one month the Council will provide us with evidence it has implemented the actions it identified as necessary, that it:
1. holds regular workshops to ensure that social workers understand the difference between a private arrangement and when a child or young person has effectively been accommodated, even if a parent or guardian has not signed agreement; and
2. holds a weekly panel meeting to review all arrangements where children are likely to be placed in to care to ensure that decisions are made in a timely manner and legal advice sought where necessary.
73. Within three months the Council agreed to:
1. remind relevant staff it should consider its discretion to consider all elements of a complaint under the statutory complaint procedure, particularly where a complainant is likely to be disadvantaged by using different complaint procedures;
2. ensure relevant staff accurately record the time, date and content of phone calls with special guardians about financial matters; and
3. review its child protection conference policy and information leaflet and ensure they provide the same information about the appeals process.
74. The Council will provide us with evidence it has complied with the above actions.

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Final decision

75. I have completed my investigation. I found fault leading to injustice and the Council has agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman