Summary: The Ombudsman upholds the complaint from Ms X about the Council’s failure to investigate her complaint. The Council has failed to comply with its legal duties to investigate complaints. This has caused Ms X avoidable delay in receiving a response to the complaints she has made. The Council agreed to apologise to Ms X, remind officers of their legal duties, and carry out an investigation once court proceedings have ended.

The complaint

1. Mrs X complains the Council has not investigated her complaint about the actions of her daughter’s social workers. She says her daughter gave written consent for information about her to be shared but the Council has not accepted this. As a result, she has not had a response to the concerns she has about her daughter’s case. Ms X would like an independent investigation into her complaint.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have considered the complaint made by Ms X and the documents she provided.
5. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
6. I have given Ms X and the Council an opportunity to comment on my draft decision and I considered their responses.
7. I have also considered the Ombudsman’s focus report, ‘Are we getting the best from children’s social care complaints?’ published in 2015.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

9. Section 26(3) of the Act says councils should have a procedure for considering complaints made by looked after children and children in need. It says this procedure should also apply to complaints made by parents of such children.

The Children Act 1989 Representations Procedure (England) Regulations 2006

10. These regulations set out how councils should investigate complaints about services for looked after children and children in need. This is sometimes called the statutory complaints procedure.
11. The statutory complaints procedure has three stages: local resolution, investigation and review panel:
• Stage 1 - local resolution; where a council investigates and responds to the complaint.
• Stage 2 - Investigation; the council must appoint an investigating officer to lead the investigation and an independent person to oversee this.
• Stage 3 - Review Panel; the council must appoint three independent people to sit on a panel to consider the stage 2 investigation and outcomes.
12. Councils can only vary from the statutory complaints procedure in exceptional circumstances.
13. Regulation 8 says councils can refuse to consider a complaint if to do so could prejudice concurrent court proceedings. However, after the proceedings have ended, a complainant can resubmit the complaint for the council to consider.
14. Regulation 15 says that, if a complainant is not happy with a council’s stage 1 response to their complaint, they can ask that it is considered at stage 2.
15. Regulation 17 says that, if a council has received such a request, it must progress the complaint to stage 2.

What happened?

16. Ms X’s teenage daughter, C, has spent periods of time as a looked after child. She has also spent some time in hospital.
17. Ms X made a complaint about her daughter’s independent reviewing officer in October 2018.
18. The Council considered the complaint through its corporate complaints procedure and sent a prompt response. It said it couldn’t address all the issues Ms X had raised because C had not given consent for information about her to be shared. It responded to some of the complaints Ms X had made.
19. C made her own complaint, via an advocate, around the same time. Some of the issues raised by C were the same as those raised by Ms X.
20. Ms X told the Council she was not happy with the response she received. She said she had provided signed consent from C for Ms X to have access to her information. She provided this at the beginning of October as part of a request Ms X had made for records to be released to her.
21. Ms X made a second complaint, about her daughter’s social worker, at the end of October
22. A second response to Ms X’s first complaint was sent at the end of November, from a service manager. The Council repeated that it did not have C’s consent to provide Ms X with a detailed response. As C was in hospital at the time, the Council said it did not consider it was appropriate to approach her to seek consent. It said if C gave consent once she recovered, the Council would share everything with Ms X. The response directed Ms X to the Ombudsman if she remains dissatisfied.
23. The Council did not respond to Ms X’s second complaint.
24. Ms X approached the Ombudsman. C provided the Ombudsman with consent to share her personal data with Ms X. This was witnessed by a medical professional.

Analysis

25. The law says councils must consider complaints from parents of looked after children under its statutory complaints procedure. The Council failed to do so, and this was fault. This has prevented Ms X from having further investigation into her complaint, with independent oversight, as required by the regulations.
26. C has now given written consent for her mother to have access to her personal data on two separate occasions. The Council has not provided any evidence of further discussions with C about sharing her information. This is fault and has caused further delay to Ms X in receiving a response to her complaints.
27. The Council does not need to rely on C’s consent to investigate Ms X’s complaint. It has a legal duty to comply with its responsibilities under S26(3) of The Children Act 1989. While there may be limits to how much information it can disclose to Ms X about C without her consent, this would not prevent it undertaking a statutory complaint investigation.
28. The Council told me one reason it did not investigate Ms X’s complaints further was because it was considering starting legal proceedings. However, it did not issue proceedings for several months after Ms X made her first complaint. As proceedings were not underway, Regulation 8 as set out in paragraph 12 of this decision did not apply. There was no impediment to the Council carrying out an investigation. This was fault and has caused further delay to Ms X in reaching a resolution to her complaints.

Agreed action

29. To remedy the faults identified, within four weeks of the final decision the Council has agreed to:
• write to Ms X to apologise for the faults identified; and
• remind officers of their duties under The Children Act 1989 Representations Procedure (England) Regulations 2006 to investigate complaints from parents.
30. The Council also agreed to write to Ms X within two weeks of any outstanding court proceedings ending inviting her to submit a complaint at Stage 2 of the statutory complaints procedure.

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Final decision

31. I uphold the complaint for the reasons set out in the Analysis section of this decision.

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Investigator's decision on behalf of the Ombudsman