Decision : Upheld
Decision date : 27 Mar 2017
The Ombudsman's final decision:
Summary: The Council was at fault for not investigating Mr A’s complaint under the statutory complaints procedure for children’s social care. It has now agreed to respond to the matters he raised using this process.
- Mr A complained about the Council’s refusal to investigate his complaint about Children’s Services. This concerned the decision that he should not attend his daughter’s looked after reviews, and how the social worker recorded this and shared information with him. He was also unhappy that the Council did not give him a clear explanation of its decision not to investigate or make reasonable adjustments for his autism.
The Ombudsman’s role and powers
- 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)
How I considered this complaint
- I considered the information Mr A provided, including details of the matters he wished to complain about, his arguments for why the Council must investigate and his communication with the Council on this topic.
- I reviewed information sent by the Council about its reasons for not investigating the complaint and its correspondence with Mr A.
- I referred to relevant legislation and guidance, namely the Children Act 1989, the Children Act 1989 Representations Procedure (England) Regulations 2006 and the government’s guidance on the statutory complaints procedure for children’s social care, Getting the Best from Complaints (2006).
- I sent a draft decision to Mr A and the Council for their comments.
What I found
- Mr A’s sixteen-year old daughter B is a looked after child. The Council has a Care Order and shares parental responsibility with Mr A and her mother. B currently does not want the Council to share any information about her with Mr A. The Council has decided he should not attend her looked after child reviews. This view is shared by B’s social worker and the Independent Reviewing Officer for her care plan (IRO). Following Mr A’s complaint about this in June 2016, the Council agreed to hold split reviews, so B and Mr A would both attend, but not at the same time.
- In late November the Council told Mr A he could not attend B’s review in December but could have a separate meeting with her social worker and the Independent Reviewing Officer.
- Mr A was unhappy about this decision and made a formal complaint the same day. He set out why he believed the Council had breached the statutory procedure for reviews. He also said it had not provided a clear written explanation of its decision or sent him consultation documents to allow him some input into the review. He further complained the Council had discriminated against him by excluding him from meetings based on his autism.
Statutory complaints procedure
- The Children Act 1989 Representations Procedure (England) Regulations 2006 (“the Regulations”) set out the three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 1, councils should try to resolve the complaint within a maximum of 20 working days. If this is not possible, the council must arrange an independent investigation at stage 2 of the procedure. This involves appointing an investigating officer to consider the complaint in depth and produce a report, overseen by an independent person. If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review panel.
- Getting the Best from Complaints (“the Guidance”) sets out clearly who can complain using this process, with reference to the law and regulations. This includes:
- Any child or young person (or a parent of his or someone who has parental responsibility for him) who is looked after by the local authority or is not looked after by them but is in need.
It also includes:
- Such other person as the local authority consider has sufficient interest in the child or young person’s welfare to warrant his representations being considered by them.
- The Guidance also explains what matters can be complained about, which includes:
- An unwelcome or disputed decision;
- Attitude or behaviour of staff;
- Assessment, care management and review.
- Under the procedure, adults can make complaints which relate to a child but which are not made on behalf of a child. The Guidance states that:
The Children Act 1989 gives discretion to local authorities to decide in cases where eligibility is not automatic whether or not an individual has sufficient interest in the child’s welfare to justify his complaint being considered by them. Where possible, the local authority may wish to check with the child or young person that he is happy with the person making a complaint.
- The Regulations state that individuals who do not have automatic eligibility, and therefore where the local authority has discretion, are those falling within the subsections of the Children Act 1989 referring to “any other person the authority considers has a sufficient interest in the welfare of a child to warrant his representations being considered by them” (Children Act 1989, s26(3)(e), (3B)(b),(3C)(c) )
- However, this does apply when parents or other adults with parental responsibility are complaining about matters which affect them, as they are automatically entitled to have their complaint investigated under the procedure.
Council’s response to Mr A’s complaint
- The Council responded to Mr A by email and stated that it could not consider his complaint through the statutory complaints procedure because B did not want him to have any information about her and it had to prioritise her wishes and feelings. It offered him a meeting with the Independent Reviewing Officer and his manager as an alternative to the complaints process.
- Mr A responded and referred to the relevant sections of the guidance and regulations to support his argument that the Council must consider his complaint through the statutory procedure. He stated that his complaint did not directly concern decisions or information about B’s care but was about the process the Council had followed, so would not breach her wish to keep details from him. He explained that, due to his autism, he prefers to have clear answers to any points he raises, with direct references to the relevant legal framework. He asked the Council to refer him to the regulation or procedure it was invoking in refusing his request to investigate his complaint.
- The Council responded by repeating its position that it could not consider his complaint because it was not possible to do so without breaching B’s wishes. It did not refer to the law or regulations but advised him that he could complain to the Ombudsman for independent scrutiny of the decision.
- Mr A complained that the Council had still not answered his questions and that, by not giving a clearer response or referring to the regulations as requested, it had failed to make reasonable adjustments for his disability, as required under the Equality Act 2010. He stated that he now wished to make a separate complaint about this particular issue under the corporate complaints procedure.
- The Council repeated its position that he should approach the Ombudsman.
- In January Mr A had a meeting with the IRO and his manager about the decision to exclude him from reviews and his concerns about not being properly consulted. They explained the reasons for the decision and agreed on actions the IRO would take to involve Mr A more closely. The manager then sent a letter confirming the discussion and outcome of the meeting. This records that Mr A was satisfied with the meeting but still planned to pursue a complaint with the Ombudsman.
- Mr A says that during this meeting the IRO and manager stated they could not comment on the actions of the social worker or manager. Therefore, he still feels this part of his complaint has not been addressed.
Was there fault causing injustice?
- As B’s father, Mr A is automatically entitled to have his complaint considered under the statutory complaints procedure. The Council does not have discretion to decide whether he is a suitable person to make a complaint. The key matters in his complaint concern his exclusion from the Council’s care planning for B, which falls within the scope of the procedure.
- The Council was right to take account of B’s wishes and feelings and to consider whether investigating Mr A’s complaint would breach her confidentiality. However, Mr A is clearly complaining about the process that has been followed in relation to B’s reviews and whether this has been breached by excluding him and not providing information. It is possible to investigate whether Children’s Services followed the correct procedure for B’s looked after child reviews without sharing details of what was discussed or other confidential information. Mr A made it clear it was this he was complaining about, not the contents of the reviews.
- Therefore, the Council has not provided a valid reason for refusing to follow the statutory complaints procedure. This is fault. The decision not to respond to Mr A’s separate complaint about not making reasonable adjustments is also fault.
- However, the meeting with the IRO covered many of the issues Mr A raised. He was able to express his concerns and the IRO explained his decision. They also agreed on actions going forward. So I cannot say the Council has ignored these matters or refused to address them at all with Mr A.
- Therefore, while Mr A has explicitly asked for a separate response from Children’s Services about its handling of the matter, and the Council should provide this, it is likely to be similar to the explanation he has already received. So the Council’s provision of a response in January has reduced the injustice to him.
- The Council will respond to Mr A’s complaint about whether the social worker followed due process in relation to his exclusion from his daughter’s reviews and how this was recorded and communicated to him. The Council will investigate under stage 1 of the statutory complaints procedure and provide a written response within the required timescale.
- The Council will confirm the points of the outstanding complaint in writing with Mr A so that both parties are clear. This will not include any matters that involve sharing information about B against her wishes.
- In addition, the Council will use its corporate complaints process to respond to Mr A’s complaint about failing to make reasonable adjustments when explaining its decision not to investigate his complaint about Children’s Services.
- The Council was at fault for refusing to investigate Mr A’s complaint under the statutory complaints procedure for children’s social care and for not responding to his complaint about reasonable adjustments. This caused him some injustice.
- The Council accepted my recommendation so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman