Decision : Upheld
Decision date : 21 Nov 2019
The Ombudsman's final decision:
Summary: Ms X complains the Council delayed dealing with her complaints about support for her and her daughter. Ms X also complains the Council failed to make reasonable adjustments for her mental health issues. There were delays by the Council in dealing with Ms X’s complaints and it failed to properly respond to her requests for reasonable adjustments. The Council should apologise to Ms X and provide her with support. The Council should also take action to improve its services.
- Ms X complains the Council failed to take account of her views when assessing the ongoing care her daughter was receiving. Ms X says there were delays in the Council responding to her complaints and the Council has failed to follow up on actions it agreed as a result of upholding parts of her complaints.
- Ms X says the Council failed to make reasonable adjustments for her mental health issues.
- Ms X says the Council’s actions left her feeling distressed.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I have spoken to Ms X about her complaint. I have also visited the Council’s offices to view relevant files.
- I have written to Ms X and the Council with my draft decision and given them an opportunity to comment.
- 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.
What I found
Complaints about children’s services
- 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 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.
- If a complaint is submitted orally at stage 2 of the process, a council must ensure the details of the complaint and the complainant’s desired outcomes are recorded in writing and agreed with the complainant. (Regulation 16, the Children Act 1989 Representations Procedure (England) Regulations 2006)
- The law says the stage 2 investigation should be completed and the response sent within 25 working days. This can be extended to a maximum of 65 working days in complex cases. (Regulation 17(3) the Children Act 1989 Representations Procedure (England) Regulations 2006)
- The law says the start date of a stage 2 investigation runs from the date a council received a request to escalate a complaint. If the complaint is received orally then the start date is from the date details of the complaint were agreed in writing. (Regulation 17(4) & (5) the Children Act 1989 Representations Procedure (England) Regulations 2006)
- If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. This is considered by a panel made up of independent people who are not members or officers of the local council.
- Stage 3 panels should meet within 30 working days of a request for a stage 3 panel hearing. The panel should produce its report within 5 working days of the hearing and the Council should issue its response within 15 working days of receiving the report.
- 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.
Independent reviewing officers
- Independent Reviewing Officers (IROs) are social workers, who are also experienced social workers whose duty is to ensure the care plans for children in care are legally compliant and in the child’s best interest. All local authorities have a duty to appoint an IRO to every child in care. IROs are required to oversee the child’s care plan and ensure everyone contributing to the care plan fulfils their legal obligations to the child. IROs usually chair regular meetings of professionals where care plans are reviewed.
Ms X’s previous complaint
- Ms X previously complained to the Ombudsman about care provided to her daughter. This investigation dealt with the period from April 2013 to March 2016.
- We found fault with the way the Council had dealt with Ms X’s complaint. It had taken the Council a year to investigate Ms X’s complaint at stage 2 of the children’s statutory complaints process. The law says it should take the Council no longer than 65 days.
- We also found fault with the way the stage 3 panel considered her complaint as it did not consider all the available evidence.
- We said the Council was at fault for failing to provide proper support to the family and failing to plan for Ms X’s daughter’s future. As a result Ms X’s daughter was in residential care longer than she should have been. We found there were delays in minutes of LAC review meeting being circulated and outcomes of those meetings were not specific in setting out what action should be taken.
- We also said the Council was at fault for stopping contact between Ms X and her daughter as it had no legal basis for doing do.
- We recommended the Council apologise to Ms X and pay her £2100 to recognise the distress caused.
- We also recommended the Council should take the following action to ensure other children and families are not affected by the same issues:
- Review the use of section 20 to accommodate children to ensure the Council is using its powers appropriately.
- Review the LAC review process to ensure actions are specific, measurable, achievable, realistic and time specific.
- Remind staff that minutes of LAC reviews should be circulated as soon as possible after the meeting in line with guidelines.
- Review training needs of all social care staff to ensure they have received up to date training on child sexual exploitation.
- Ensure officers carrying out stage 2 investigations have received training in handling complaints.
- Review current arrangements to ensure the Council continues to have resources in place to deal with children’s services complaints.
Ms X’s current complaint
- Ms X’s current complaint relates to what happened from March 2017.
- At this point in time Y was in foster care and Ms X was attending review meetings regarding Y’s care and the Council and Y had agreed to contact with Ms X six to seven times per year.
- In September 2017 Ms X complained to the Council about how review meetings were being conducted. Ms X said:
- her views were being dismissed;
- minutes of the meetings were inaccurate; and
- the Council had not made reasonable adjustments to help her communicate at the meetings and also to help her understand what is being discussed.
- The IRO had softened some of Ms X’s views in the minutes of the review meetings to present them in a professional manner and to protect Y.
- The IRO had omitted some of Ms X’s views from the minutes of the meetings as it could potentially have a negative effect on services being provided to Y.
- The Council had already made adjustments to meet Ms X’s needs by allowing her to make notes, bring someone to support her and not interrupt her when she was speaking. The Council said it had made these adjustments even though Ms X had “no formal diagnosis” of her condition.
- Y had not consented to the meeting being recorded.
- Other professionals did not consent to being recorded.
- A recording of the meeting would “not show non-verbal communication which would not given an accurate account of the meeting”.
- The Council was concerned about confidentiality and the possibility of the recording being edited.
- The Council’s comments about Ms X’s health conditions in the stage 1 complaint “could be read as negative and insensitive”.
- The stage 1 complaint response did not provide an accurate account of what happened at the review meeting in September 2017.
- The IRO could have recorded Ms X’s contributions to the meetings more fully and accurately.
- The IRO did not accurately record the interactions between Ms X and the foster carer at the review meeting in September 2017.
- Minutes of the review meetings sent out later than they should have been.
- The Council was wrong to inform Ms X that contact with Y had been suspended in a letter. The Council should have found a more sensitive way to communicate this.
- Amend minutes of a review meeting to more accurately reflect Ms X’s views.
- Apologise to Ms X for the tone of its stage 1 response to her complaint.
- Write to Ms X to assure her that minutes of review meetings will be distributed within the 20 day timescale. Any delay should be communicated to Ms X without delay.
- The Council should consider allocating a new IRO should Ms X continue to have a negative view of the current IRO.
- Ms X should be offered support to prepare for review meetings.
- Reasonable adjustments should be made for Ms X to attend review meetings when social services receive a qualified view on what a professional assessment considers would help Ms X when attending meetings.
- Ms X should be offered the support of an adult social worker for a time limited period with the purpose of supporting her through the process of re-establishing contact with Y.
- A clearly defined therapeutic intervention should be provided for Y and where appropriate include family work with Ms X and other family members.
- It would ask the IRO to meet with Ms X to discuss the best way to support
Ms X to prepare for review meetings.
- It would consider Ms X’s requests for reasonable adjustments once she had a “qualified diagnosis” of her condition that “describes what reasonable adjustments” could benefit her.
- It would liaise with Adult Services about the possibility of support from an adult social worker “following the receipt of a qualified diagnosis”.
- The Council would review what therapeutic support might be necessary for Y.
- The Council has already upheld significant parts of Ms X’s complaint about the way it has dealt with her and support it offered. Therefore, I am only investigating the way the Council investigated her complaint and responded to recommendations made. This is because there is nothing further I could achieve by investigating the substantive matters of the Council’s failure to consider her views in relation to the support provided to her daughter.
Delays in responding to Ms X’s complaints
- There were significant delays in the Council responding to Ms X’s complaint at stage 2 of the statutory complaints process. The regulations say the timescale for completing a stage 2 investigation starts when the request to have the complaint considered at stage 2 is submitted to the Council in writing. If the complaint is made orally the timescale starts from the date the details of the complaint are agreed in writing. Ms X made her request by e-mail.
- The Council should have completed its investigations into Ms X’s complaint by
7 March 2018 at the latest. It did not do so until 15 August 2018. That is approximately 22 weeks longer than set out in the regulations. The failure to deal with Ms X’s complaint within the statutory timescales is fault.
- The Councils says it struggled to find an investigating officer to look at the complaint who was not familiar with the case. It also says it had to change investigators mid-way through due to a potential conflict of interest. However, the Council should ensure it has enough resources in place to meet its statutory obligations.
- In August 2018 we asked the Council to review its current arrangements for dealing with children’s complaints to ensure it has resources in place. This recommendation was made after the matters complained of here. However, I asked the Council to provide me with details of complaints it has handled since August 2018. The Council’s response shows that it is still unable to respond to complaints at stage 2 within statutory timescales.
- There was no or very little delay in the stage 3 process. The panel met within 30 working days of Ms X’s request and produced its report within 5 working days of the panel meeting. The Council responded to the report 16 days after it received the report. However, this is not a significant delay and I do not consider this to be fault.
Council’s response to recommendations made
- The Council says it will not consider making reasonable adjustments for Ms X until she has a "qualified diagnosis” which sets out what reasonable adjustments would be appropriate.
- There is no requirement in the Equality Act 2010 for a person to have a formal or “qualified” diagnosis of a health condition for the Council to make reasonable adjustments for that person. The Council must consider if a person has a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out day to day activities. The Council must then consider what adjustments may be necessary and should ask the person concerned what adjustments they require.
- Therefore, the Council is at fault for requiring Ms X to provide a diagnosis and a medical or clinical opinion on what reasonable adjustments may be required.
- I also note that the Council refused Ms X permission to make an audio recording of a meeting in February 2018. Ms X made a request for a reasonable adjustment because of the impact of her mental health issues on her ability to recall details of what had been said.
- The Council failed to take account of Ms X’s mental health issues when it responded to this request. Instead the Council focussed on opinions of other professionals, Y’s refusal to give consent to sharing her information with Ms X and the possibility the recording might be shared more widely.
- Ms X has shared parental responsibility for Y. Therefore, the Council cannot restrict her access to information about Y even if Y says she does not give consent for Ms X to have such access. If the Council wanted to change this it would have had to apply to court to remove parental responsibility from Ms X.
- The Council was not discussing personal details of other professionals, so it did not need their consent to share information about their professional opinions on an audio recording. There was also no indication that Ms X would share or edit any recording and she had explained this was for her own personal records.
- The Council has not provided any proper reason for refusing Ms X’s request to record its meeting with her of 14 February 2019 to help her recall what had been said. Ms X had linked this to her ongoing mental health issues.
- The Council allowed Ms X to be accompanied to the meeting by a relative who was able to make notes. However, the relative was involved in ongoing issues with Y and the Council records show that the relative stopped taking notes during the meeting. Therefore, the adjustment did not meet Ms X’s need to have a record of the meeting she could refer to afterwards.
Injustice caused to Ms X
- Ms X has been caused significant time and trouble and distress as a result of the Council’s delay in dealing with her complaint and its failure to properly consider her requests for reasonable adjustments.
- The Council should take the following action to remedy the injustice to Ms X I have identified:
- Write to Ms X and apologise for delays in dealing with her complaint and way it dealt with her requests for reasonable adjustments.
- Pay Ms X £400 to recognise the time and trouble she was caused as a result of the delays and distress caused as a result of failures to properly consider her requests for reasonable adjustments.
- Arrange for Ms X to receive support from an adult social worker with a background in mental health. The social worker should work with Ms X to explore what reasonable adjustments she may need and to refer her to local health, care and voluntary services that may be able to provide her with support. The support should be made available to Ms X for a minimum of 6 months.
- Following discussions with the adult social worker the Council should consider any requests Ms X makes for reasonable adjustments and set out what reasonable adjustments it is willing to make in writing within 2 weeks of any request being made.
- Arrange complaint handling training for all staff dealing with complaints about children’s services.
- Produce an action plan setting out measures the Council intends to take to ensure it meets statutory timescales for responding to complaints under the statutory children’s complaints procedure.
- Arrange relevant training on reasonable adjustments and Equality Act 2010 for all children’s services staff, social workers and managers who deal with the public. If training has been provided since August 2018 please provide details of this.
- Produce internal guidance setting out the Council’s approach to requests from parents to make audio recordings of meetings. This should include consideration of the Council’s duties under the Equality Act 2010.
- I have completed my investigation into this complaint as I have found fault causing an injustice. The action I have recommended is a suitable way to remedy this.
Investigator's decision on behalf of the Ombudsman