Summary: Miss X complains the Council has failed to properly investigate her complaint through the statutory children’s complaints procedure. There was fault in the stage 3 panel’s decision not to allow Miss X’s nominated representative to speak on her behalf. This is because the chair of the panel had previous dealings with her representative when working for the Council and the panel should be independent of the Council. The Council should arrange for a new stage 3 panel to consider the complaint.

The complaint

1. Miss X complains the Council has failed to properly investigate her complaint through the statutory children’s complaints procedure. She says the Council and Independent Investigator failed to give her a chance to comment on findings at stage 2. Miss X says the Council then failed to appoint an independent chair of the panel when she complained at stage 3 and the Council refused to allow her representative to speak on her behalf.
2. Miss X says she needs help from her representative, Mr Y, as a reasonable adjustment under the Equality Act 2010 but the Council refused her request.
3. Miss X says the Council has failed her son, whom I shall call Z, whilst he was in care. She says the Council failed to protect him whilst Z was in care and failed to provide the family with support when he returned to live with her. Miss X says the Council has also failed to provide Z with education and meet the requirements set out in his statement of special educational needs.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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. 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

7. I have spoken to Mr Y about Miss X’s complaint. I have also considered information Mr Y has provided to the Ombudsman on Miss X’s behalf.
8. I have considered information the Council has provided to the Ombudsman in response to our enquiries. This includes:
• The Council’s response to Miss X’s complaints.
• Looked After Child Review Records relating to Z.
• The Council’s comments on the complaint.
9. I have written to Mr Y, Miss X and the Council with my draft decision and given them an opportunity to comment.
10. 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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What I found

11. The law 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 Investigating Officer 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. (Children Act 1989 Representations Procedure (England) Regulations 2006 & “Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others”)
12. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

13. In 2013 Miss X’s son, Z, was placed in residential care when Miss X and foster carers were unable to manage his behaviour. Z was later made the subject of a care order in February 2015 when Miss X threatened to withdraw her consent to him being in residential care.
14. In January 2017 Z moved to another residential placement.
15. On 21 February 2017 the Council responded to Miss X’s complaint about her son, Z’s, placement in residential care. Miss X said this had disrupted Z’s education and she was concerned about risks the Council had identified relating to Z’s previous placement.
16. The Council said Z’s previous placement had only become a risk during the last three months of his stay due to Z’s behaviour. The Council also explained Z was enrolled on an educational course “and doing well”.
17. Miss X was unhappy with the Council’s response to her complaint and on
18. On 31 March 2017 Z left residential care and returned to live with Miss X.
19. On 7 August 2017 there was a court hearing regarding the revocation of the care order for Z. The Council says it applied to revoke the care order because Miss X and Z were no engaging with the Council. Neither Miss X or Z attended the hearing. The court revoked the care order.
20. Miss X raised a complaint at stage 2 of the statutory complaints. The nature of the complaint was discussed and agreed with Miss X in a meeting on 6 September 2017.
21. The Council appointed an Investigating Officer and Independent Person who met with Miss X to discuss her complaint on 21 September 2017. Miss X asked for another opportunity to discuss the nature of her complaint with the Investigating Officer and Independent Person. The Independent Person discussed the complaint with Miss X again on 17 October 2017 as the Investigating Officer was not available.
22. The Investigating Officer attempted to speak to Z during the investigation into the complaint. Attempts included hand delivering a letter to Z at Miss X’s house. However, Z was not willing to engage.
23. The stage 2 investigation considered the following complaints:
• Z’s move from one residential placement to another was poorly managed.
• Z’s educational needs have not been addressed proactively and his statement of special educational needs was allowed to lapse without challenge.
• The arrangements for moving Z in with Miss X and his leaving care were not properly managed. The Council did not prioritise Z and Miss X’s needs or take account of their views.
• The Looked After Child (LAC) Review process and in particular the Independent Reviewing Officer (IRO) failed to properly assess Z’s needs and progress of the care plan. Z and Miss X’s views were not taken into account.
• The Council’s communication with Z and Miss X about his care has been poor and resulted in confusion and misunderstanding.
24. The Investigating Officer set out her findings into the complaint in a report dated 11 December 2017. She found:
• Concerns about Z’s safety were “promptly reported to” Miss X. However Miss X was not present at the LAC Review meeting prior to Z being moved and there was a delay in sending out the minutes. The minutes of the meeting “did not specifically endorse a placement move”. The Investigating Officer said it would have been “preferable” to have held another LAC Review meeting before Z was moved.
• Z’s statement of Special Educational Needs was provided by another Council. That Council ended the statement as it did not feel Z required a high level of support. The Council did not challenge the decision at the time. When this issue was identified there was confusion about who would appeal the decision. However this did not impact on Z as appropriate education was available to him during this period, although Z has not always engaged with attempts to encourage him to attend.
• The Council identified that Z moving back into its area might result in him moving back in with Miss X. However this was the only placement available at the time. The Council has attempted to provide support to Miss X and Z but “this has not been successful largely due to their reluctance to co-operate”.
• There was confusion about who was supporting Z to claim compensation when he was assaulted by a police officer and his complaint was upheld by the Police Complaints Commission. This was because the IRO had not properly recorded who was following up on this action. However, Z began to disengage from support and so it has not been possible to follow this up.
• The Council should have done more to engage and attempt to communicate with Miss X and Z. The onus was on the Council to continue to try and engage with the family. The Council should have tried to find a way to communicate directly with Z once he returned to live with Miss X.
25. The Investigating Officer recommended the Council:
• Apologise to Miss X and Z for where the service provided fell below accepted standards.
• Confirm to Miss X what action it intends to take for support Z as a care leaver and what action it intends to take to ensure the same mistakes are not repeated in other cases.
• Attempt to rebuild the relationship between Miss X and Z including what steps will be taken if the relationship breaks down again.
• Agree priorities for future support for Z.
• Consider whether the difficulties experienced by Miss X and Z are “widespread” and address any systematic issues identified.
• Consider whether more needs to be done to ensure social workers and IROs are “consistently mindful of young people’s rights, priorities and timescales when care planning”.
• Ensure that stage 1 complaints are not responded to by managers who has some involvement in the matter complained about. This is because Miss X made two complaints at stage 1 and both were responded to by a manger for the service area dealing with Z’s care.
26. The Council wrote to Miss X on 19 December 2017. The Council accepted the Investigating Officer’s findings and most of the recommendations. However, the Council said it saw no reason to employ an independent mediator to rebuild its relationship with Miss X and Z. The Council also said there was no issue with managers for a service subject to a complaint responding to stage 1 complaints. The Council said when the complaint was about the action of the manager their line manager would respond.
27. The Council said Miss X could submit a complaint to the stage 3 independent review panel within 20 working days if she remained unhappy.
28. Miss X phoned the Council on 3 January 2018 to request it consider her complaint at stage 3 of the statutory complaints process. The Council wrote to Miss X on the same day to confirm her complaint would be progressed to stage 3.
29. The Council wrote to Miss X again on 18 January 2018 to confirm the panel hearing would take place on 21 February 2018.
30. Mr Y attended the hearing on 21 February 2018. Miss X did not attend. The panel said Mr X could not act as an advocate for Miss X. Mr X said he was able to speak on Miss X’s behalf due to her disability. The panel decided to adjourn the hearing and offer to arrange an advocate for Miss X. The panel asked Mr Y and Miss X to provide details of their objections to the findings of the stage 2 investigation.
31. Miss X says she dealt with the chair of the panel some years ago although she has not passed this information on the Council. Mr Y says he dealt with the chair of the panel when she was working for the Council and says she should not be dealing with the stage 3 complaint because of this.
32. The Council says Mr Y is not an appropriate advocate for Miss X. The Council says Mr Y can support Miss X at the panel but he cannot speak on her behalf.
33. On 1 March 2018 the Council wrote to Miss X to say it had rearranged the stage 3 panel hearing for 13 April 2018. The Council said it was prepared to provide
    Miss X with an advocate free of charge.
34. The Council spoke to Miss X on 7 and 8 March 2018 and then wrote to her on 8 March 2018. The Council said the chair of the panel was independent. The Council repeated its offer to provide Miss X with an advocate and said Mr Y could attend in a supporting role but not as an advocate. The Council asked Miss X to confirm whether she wanted to continue with her complaint at stage 3.
35. The Council spoke to Miss X on 14 March 2018. Miss X said she was not satisfied the chair of the stage 3 panel was independent and was unhappy the Council would not accept Mr Y as her advocate. Miss X asked that the Council agree that she could take her complaint direct to the Ombudsman.

My findings

36. Mr Y says Miss X should have been given an opportunity to comment on the investigating officer’s findings before a final report was issued. However, there is no requirement in law or statutory guidance for the investigating officer to do so. Therefore, I find no fault in the investigating officer not sharing their findings with Miss X before issuing the stage 2 report.
37. Mr Y and Miss X say the investigating officer failed to properly address their complaints. I have considered the summary of the complaints Miss X made which were agreed with the investigating officer and independent person, reports produced by both the independent person and the investigating officer as well as evidence the investigating officer considering in reaching their views on the complaints. I have found no fault in the way the complaints were investigated or the way the investigating officer reached their conclusions.
38. I have not reached any conclusions regarding any fault or injustice regarding the substantive complaints made by Miss X.
39. Miss X had an opportunity to take her complaint to stage 3 of the complaints process. She exercised her right to do so but she objected to a former employee of the Council chairing the panel.
40. Statutory guidance says the chair of the panel “should not have been an officer or a Member of the local authority during the three years preceding the Panel”. However the guidance says this is “good practice”. (“Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others” paragraph 3.13.3)
41. The Council accepts that the chair was employed by the Council within three years of Miss X’s complaint. However, it says that it appointed the chair to reflect “the need to balance the timely progression of complaints resolution for the benefit of complainants, against the difficulties in commissioning suitably experienced and skilled independent people to this role”. (Council’s response to my enquiries dated 6 August 2018)
42. The Council has accepted it was not good practice to appoint a chair who had worked for it within three years of Miss X making the complaint. However, the Council has balanced this against the availability of appropriate persons to chair the panel and need to progress Miss X’s complaint. That is a decision the Council is entitled to take and so I cannot find fault.
43. However, there was fault in the actions of the independent stage 3 panel. The Council accepts that the chair of the panel had prior dealings with Mr Y. The panel is independent of the Council and so the chair should have identified she was compromised as a result of Miss X’s request to have Mr Y represent her.
44. The regulations say a complainant “may be accompanied throughout the meeting by his advocate, where one has been appointed, and by another person of his choice, and may nominate the advocate or that other person to speak on his behalf”. (Children Act 1989 Representations Procedure (England) Regulations 2006, regulation 19(6))
45. As the panel is independent of the Council it must make its own decision as to who may be able to speak on a complainant’s behalf regardless of any restrictions the Council may have in place. It is not clear whether the panel or the Council made the decision that Mr Y could not speak on Miss X’s behalf. Regardless the chair of the panel was compromised due to her previous dealings with Mr Y. Therefore, there is fault in the stage 3 panel’s decision not to allow Mr Y to speak on Miss X’s behalf.
46. The Council has offered to fund an advocate to represent Miss X if she is unable to do so herself. However, the regulations say Miss X has a choice as to who she wants to have speak on her behalf.

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Agreed action

47. Following my recommendations the Council has agreed to take the following action to remedy the injustice caused to Miss X:
• Arrange for a stage 3 panel to hear her complaint. The Council should ensure panel members have had no prior dealings with Miss X or Mr Y.
• The stage 3 panel should consider recommending the Council pay Miss X a financial remedy the time and trouble caused in having to pursue a complaint to the Ombudsman rather than having her stage 3 complaint heard properly in the first instance.
48. The Council should complete this within 8 weeks of my final decision.

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Final decision

49. I have completed my investigation as I have found fault causing injustice. The recommendations I have made are a suitable way of remedying this.

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Investigator's decision on behalf of the Ombudsman