Decision : Upheld
Decision date : 09 Mar 2020
The Ombudsman's final decision:
Summary: The complainant alleges that the Council has failed to pay all the allowances he was entitled to as a child, in its care, and since he became a care leaver. The Ombudsman considers that the Council has been at fault by not carrying out an independent investigation of the complainant’s concerns under the Children Act 1989 statutory complaints process. The Council has now agreed to do this. Therefore, this resolves the complaint and the Ombudsman is closing the complaint.
- The complainant, who I refer to as Mr X, complains about the level of allowances he has received as a young person in the care of the Council. Mr X says that the Council owe him further allowances, which the Council disputes.
- Mr X also made a previous complaint to the Ombudsman about the quality of care he received from the Council, when in care, and that he was placed in unsupported accommodation post 16. This complaint was referred back to the Council by the Ombudsman in November 2019 to enable the Council to consider Mr X’s concerns.
What I have investigated
- I have only sought information about Mr X’s complaints about the payment of allowances. But there are links to Mr X’s other complaint about the quality of care and accommodation which he received post 16.
The Ombudsman’s role and powers
- The law says that, before investigating a complaint, we must normally be satisfied the Council knows about the complaint and has had an opportunity to investigate and to reply. All local authorities and many other bodies use their own complaints procedures, which may be different for certain types of complaint.
- 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 considered the written information from the Council and from Mr X. I issued a draft decision statement and have taken into account the Council and the complainant’s views.
- Under the information sharing agreement between the Local Government Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share the final decision statement with Ofsted.
What I found
The Statutory Children Act 1989 complaints process
- The Children Act 1989 and the Representations Procedure (England) Regulations 2006 provides that, those in receipt of certain services, can make representations or complaints to the Council. A council has to investigate the complaint subject to certain restrictions.
- There are timescales for the consideration of social care complaints under the above procedures. The guidance Getting the Best from Complaints 2006 provides detailed advice on how councils should conduct investigations.
- All functions under Part 3 of the Children Act 1989 may form the subject of a complaint. A complaint may arise as a result of many things in relation to a statutory social services function, such as an unwelcome or disputed decision, concern about the quality or appropriateness of a service, the effect of a Care Order and the Council’s actions or decisions where a Care Order is made or about assessment, care management or review.
- There are three stages to the statutory social services complaints’ procedure. The first stage allows an informal resolution of the complaint. If that is not possible, the complainant is entitled to an independent investigation of the complaint. The Council may also appoint an independent person to oversee the investigation. At the final stage, an independent Complaints Review Panel can consider the complaint.
- At each stage, the complainant has the right to ask for the complaint to be considered at the next stage of the procedure.
- The purpose of a Complaints Review Panel is, among other things, to consider the adequacy of the Stage 2 report, focus on achieving resolution by addressing the complaints and desired outcomes and reaching findings on complaints which are being reviewed.
- Paragraph 3.12 of the guidance says the Complaints Review Panel “must set out its recommendations to the council on any strategies that can assist in resolving the complaint. These may include financial compensation or other action within a specified framework to promote resolution”.
- If, after receiving the Council’s final response, the complainant remains dissatisfied, he can submit a complaint to the Ombudsman.
- The Ombudsman takes the view that complainants should exhaust the statutory complaints procedure before he will consider a complaint. He is the final point in the statutory complaints process. Therefore, councils should ensure that complainants are given the opportunity to have their complaints considered at all three stages of the statutory complaints’ procedure.
- Annex 3 of the guidance, Getting the Best from Complaints 2006, describes the circumstances in which a council can make an early referral to the Ombudsman. This can only happen if there has been a robust stage 2 report, the complaints have all been upheld and the majority of the complainant’s desired outcomes have been met.
- The guidance also says that someone can complain to the Ombudsman at any time. The Ombudsman might exercise discretion to investigate in certain but rare circumstances.
- In March 2015, the Ombudsman issued a Focus Report about children’s social care complaints. He found that a common problem was a refusal by councils to allow complainants to go through all stages of the statutory complaints’ procedure. In this report, it was clarified that the Ombudsman would be unlikely to accept complaints brought early except if the early referral criteria had been met.
Facts of this case
- Mr X made a complaint to the Ombudsman about the payment of allowances while in care and as a care leaver. The Council has looked into this complaint and part of the complaint has been upheld.
- On 7 March 2019, the Council wrote to Mr X about his continued concerns regarding his allowances. As a result, the Council agreed he should receive a monthly allowance of £80.00 and a final clothing allowance of £150.00. The Resolution Team explained that, if he was dissatisfied, Mr X should complain to the Ombudsman.
- On 1 November 2019, Mr X submitted a complaint to the Ombudsman. In late October, he received £160 from the Council by postal order.
- Mr X’s complaint to the Ombudsman lists all the allowances, which Mr X considers he is entitled to, but which he has not received. His complaint also refers to lost or stolen property and discrepancies in the Council’s policy for allowances and care leavers, which may affect other care leavers.
- Mr X also has a complaint about the unsuitability of his post 16 accommodation. The Ombudsman had referred this back to the Council, asking it to investigate it. Mr X had not received a response.
- Having considered Mr X’s concerns, I consider there is no reason for the Council not to have put Mr X’s complaint about allowances through all stages of the Children Act statutory complaints procedures. These are complaints about Mr X’s time in care and post care and I consider they are eligible for consideration under the Children Act complaints process.
- The complaint also does not meet the criteria for an Early Referral to the Ombudsman.
- The Council has therefore been at fault in not enabling Mr X’s complaint to be considered under the statutory process, causing injustice as the complaint process has been more prolonged that it should have been.
- I therefore recommended to the Council that it considers Mr X’s complaints about his allowances under the Children Act procedure, starting with a Stage 2 investigation.
- I also suggested that the Council might wish to consider combining Mr X’s two complaints (non-payment of allowances and poor post 16 care) to be investigated together under the Children Act complaints procedure by the same investigating officer.
- The Council will appoint an independent investigating officer to undertake a Stage 2 investigation into Mr X’s outstanding complaints regarding the payment of allowances. It will also combine this investigation, with its investigation into Mr X’s complaint about the quality of care and accommodation, which he received, post 16.
- The Council has been at fault in not investigating Mr X’s complaint about his allowances under the Children Act statutory process. To remedy the injustice, the Council has agreed to commission a Stage 2 Children Act investigation.
- The Council will also include, in its investigation, Mr X’s other complaint concerning the unsuitability of his post 16 accommodation.
- I will now close my investigation. Once the statutory complaints process has ended, and if Mr X remains dissatisfied, he can resubmit the complaints to the Ombudsman.
Investigator's decision on behalf of the Ombudsman