Decision : Upheld
Decision date : 31 Mar 2015
The Ombudsman's final decision:
Summary: Mr X complained that the Council wrongly refused to look into his complaint at stage 3 of the statutory children’s complaints procedure and referred the matter to this office as an early referral without his agreement. There are no grounds for this office to accept an early referral and so the Council will now arrange a review panel.
- The complainant, whom I shall call Mr X, said the Council wrongly refused to consider his complaint at stage 3 of the statutory children’s complaints procedure and has referred the matter to the Ombudsman’s office for consideration as an “early referral” without his agreement.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She 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, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
How I considered this complaint
- I spoke to Mr X about his complaint and considered the information he provided and the information the Council provided in its referral to this office. I took account of all the information before reaching a draft decision on the complaint. I took account of Mr X’s and the Council’s response to my provisional view before reaching a final decision on the complaint.
What I found
- The law (the Children Act 1989 Representations Procedure (England) Regulations 2006) sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review.
- Getting the Best from Complaints provides guidance to councils on implementing the complaints procedure. The Regulations allow for early referral to the Local Government Ombudsman after the completion of the stage 2 investigation in certain circumstances. The guidance says that before considering an early referral stage 2 must have delivered:
- a very robust report
- a complete adjudication;
- an outcome where all complaints have been upheld (or all significant complaints relating to service delivery in respect of the qualifying individual) ; and
- the local authority is providing a clear action plan for delivery; and
- the local authority agrees to meet the majority or all of the desired outcomes presented by the complainant regarding social services functions”
- The investigator completed her investigation at stage 2 of the complaints procedure on 20 October 2014.
- Mr X received the adjudication on stage 2 of his complaint on 15 January 2015. The adjudication confirms the stage 2 investigator looked into 55 complaints and recommended that 23 of these should be upheld fully and 12 should be partially upheld. The investigator recommended that 15 should not be upheld and was unable to reach a view on a further five. The adjudicating officer largely agreed with the investigator’s recommendations.
- Mr X wrote to the Council on 10 February to ask for his complaint to be considered by a review panel at stage 3 of the complaints procedure. In his request Ms X said he was dissatisfied with the decision on a number of the complaints, that accurate evidence had not been taken into account and, in some cases, the complaint had been misunderstood. He also stated he was dissatisfied with the amount of compensation offered and with the action plan. He said he would provide greater detail when a review panel was appointed.
- In response the Council’s Complaints Manager said that the regulations stated that she had to be available to advise the panel at the stage 3 review panel and that as the complaint included matters about her actions as the Complaints Manager, her role was compromised and amounted to a conflict of interest. She therefore suggested an early referral to the Local Government Ombudsman and asked for Mr X’s agreement to this.
- Mr X replied saying he would prefer his complaint to be considered at stage 3 of the complaints procedure before making any later complaint to this office.
- The Council’s Complaints Manager replied stating she remained of the view that the matter should be referred to this office as an early referral and saying she would forward details to this office.
- The Council’s Complaints Manager duly referred the matter to this office as an early referral. She drew attention to Mr X’s request for increased financial redress and pointed out the amount offered following the stage 2 investigation was the same as that offered before the stage 2 investigation.
- The referral of this complaint as an early referral does not accord with the grounds for making early referrals as detailed in the Regulations and guidance: all of the complaints have not been upheld and Mr X has expressed his dissatisfaction with the action plan. In addition Mr X is not agreeable to an early referral to this office. Mr X is entitled to a stage 3 review panel and the Council’s refusal amounts to fault. The refusal has delayed Mr X’s complaint progressing to the third stage of the procedure.
- The Council says there is a conflict of interest. The guidance says the panel chair should liaise with the Complaints Manager about the specific needs of the complainant. I recognise that the Complaints Manager feels compromised by this and would suggest the Council consider appointing a different officer to liaise with the panel chair. The Council also says Mr X is seeking a higher financial payment and this is further reason for this office to accept an early referral. The regulations provide that panels may consider the matter of financial redress.
- The Council will arrange a stage 3 review panel, with another officer to advise the panel chair if necessary, as soon as possible.
- The grounds for the Council to make an early referral are not satisfied and so the Council will take action to arrange a stage 3 review panel as soon as possible.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman