Decision : Upheld
Decision date : 26 Apr 2018
The Ombudsman's final decision:
Summary: The Council was at fault for not responding to parts of Mr and Mrs D’s complaint at stage 1 of the Children Act 1989 statutory complaints procedure. However, it was not at fault for refusing to respond to other parts of the complaint. The Council has agreed to respond to the parts of the complaint that it should have considered, which will remedy E’s injustice and Mr and Mrs D’s injustice.
- The complainants, whom I shall refer to as Mr and Mrs D complain on behalf of their daughter E. They complain specifically about the conduct of social care staff in regard to their grandchildren A and B and throughout proceedings regarding their grandson, F.
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)
- We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
- 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)
- 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.
How I considered this complaint
- I spoke to Mr and Mrs D about their complaint and considered the information they provided. I requested the Council reconsider its decision not to allow Mr and Mrs D to pursue their complaint under the statutory procedure and took account of the information it provided in response.
- I provided Mr and Mrs D and the Council with a copy of my draft decision and considered their comments.
What I found
- Mr and Mrs D first complained to the Council in March 2017 about the conduct of social care staff with regards to their grandchildren A, B and throughout proceedings regarding their grandson, F.
- The matters they complained about were considered under the Council’s corporate complaints procedure. The Council responded to the complaint in April 2017. Mr and Mrs D were dissatisfied with the response and said the Council failed to respond to its concerns. They made a further complaint in May 2017. The Council responded in July 2017 and said:
- issues about maintaining contact with F would need to be dealt with in private proceedings;
- a further investigation of the issues of complaint would not be in the best interest of F;
- that Mr and Mrs D’s complaint did not fall within the jurisdiction of the Local Government and Social Care Ombudsman because they did not live in the UK and the issues related to a decision made in court.
- Mr and Mrs D contacted the Ombudsman and said they were complaining about the conduct of social care staff and not about the court decision. They also said that the Council took too long to respond to their complaint.
- The Children Act 1989 and the Representations procedures (England) Regulations 2006 provides that those in receipt of certain services can make representations or complaints to the Council. The Council has to investigate the complaint subject to certain restrictions.
- There are three stages to the statutory children’s complaint procedure. The first is a response from the service area, within ten working days. The second stage is an investigation by a person from outside the service area or an independent person. This has a time limit of 25 working days, or 65 working days in complex cases by agreement with the complainant. Stage two starts when the complainant asks for it in writing, or if verbally, when he or she agrees a statement of complaint with the investigator. The third stage is consideration by an independent review panel.
- Paragraphs 2.2.1 and 2.2.2 of the statutory procedure sets out what may be complained about. It includes:
- an unwelcome or disputed decision;
- concern about the quality or appropriateness of a service;
- delay in decision making or provision of services;
- delivery or non-delivery of services including complaints procedures;
- attitude or behaviour of staff;
- application of eligibility and assessment criteria;
- assessment, care management and review;
- matters that do not relate to court.
- Mr and Mrs D’s complaint included issues about the attitude and behaviour of staff which were not about the court case and were not fully addressed by the Council in its response. The statutory guidance says these are areas which can be looked at under the Children’s Act complaints procedure. The Council failed to investigate this complaint under the Children Act 1989 and the Representations procedures (England) regulations 2006 and wrongly refused Mr and Mrs D a stage 2 review. As a result, it failed to ensure that the issues of complaint were properly considered. This is fault.
- The Council has accepted that the complaint was incorrectly registered as a corporate complaint. It has agreed to carry out a stage 2 investigation under the statutory procedure. It also says that it would not be at liberty to discuss the outcome of the investigation of specific staff members with the family. I am satisfied with this.
- The Council wrongly advised Mr and Mrs D that their complaint did not fall within the jurisdiction of the Ombudsman. This is for the Ombudsman to decide and not the Council. The Council has acknowledged this and said: “The council also recognises that it was not appropriate to advise Mr and Mrs [F] that their complaint would be unlikely to be in the jurisdiction of the Local Government and Social Care Ombudsman. The council will ensure that in the future, colleagues refer to the Local Government Ombudsman to determine whether or not matters are within jurisdiction”.
- Parts of Mr and Mrs D’s complaint were about their contact arrangements with A. These were decisions made by a court and the Council cannot look at them as part of the statutory complaint procedure. Neither can I. Mr and Mrs D are aware of this.
- There has been a considerable delay in responding to Mr and Mrs D’s complaints about the attitude and behaviour of staff. They first raised their concerns in March 2017 and there has not been a full investigation into the issues. There is a statutory complaints process with clear timescales which the Council did not follow. This is fault and I find that the delay has caused Mr and Mrs D and their daughter E avoidable stress and anxiety.
- The Council has agreed to my recommendations and will within four weeks of my final decision:
- Arrange a second stage investigation immediately into Mr and Mrs D’s complaint about the attitude and behaviour of staff;
- Apologise to E and Mr and Mrs D for failing to respond to their complaint under the statutory complaints procedure and therefore failing to ensure their complaints were properly considered;
- Apologise to E and Mr and Mrs D for failing to address the issues of complaint and for the avoidable stress and anxiety this has caused them;
- Pay Mr and Mrs D £150 for the avoidable delay, stress and anxiety caused by the missed opportunity to seek a stage 2 investigation into their complaint;
- Review its complaint handling process within children’s social care to ensure all staff understand what complaints should be investigated under the statutory process;
- Ensure that all staff involved in complaint handling understand the role of the Local Government and Social Care Ombudsman;
- Should Mr and Mrs D remain dissatisfied after the Council has dealt with their complaint, they can return to the Ombudsman for consideration of the substantive issues. They should do so within 12 months of the Council’s final response unless there is a good reason that prevents them from doing so.
- The Council was at fault for not responding to parts of Mr and Mrs D’s complaint at stage 1 of the Children Act 1989 statutory complaints procedure. However, it was not at fault for refusing to respond to other parts of the complaint. The Council has agreed to respond to the parts of the complaint that it should have considered, which will remedy E’s injustice and Mr and Mrs D’s injustice.
- The Council has agreed to my recommendations and I have completed my investigation
Investigator's decision on behalf of the Ombudsman