Summary: The Council was at fault for failing to arrange a review panel to consider Mr B’s complaint. It was also at fault for failing to apply for disability living allowance for Mr B while he was a looked-after child. However, it has already offered a suitable financial remedy to recognise his injustice.

The complaint

1. The complainant, whom I refer to as Mr B, became a looked-after child in 2013. He has special educational needs and is represented by a professional advocate, whom I refer to as Ms C.
2. Ms C says the Council failed to apply for disability living allowance (DLA) for Mr B when he became looked-after, and did not realise until 2019. She says this meant he missed out on five and a half years of benefits.
3. The Council accepts its failure to apply for Mr B’s DLA, and also accepts that this meant he missed out on benefits. It has offered Mr B a payment of £3,000 to recognise this. However, Ms C says the benefits Mr B missed would have amounted to over £44,000. She says the Council should reimburse Mr B for the full amount.
4. The Council says it ensured Mr B’s needs were met while he was in care, and always made funding available for this, so his injustice is not significant enough to justify a higher remedy.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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)
8. 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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How I considered this complaint

9. I considered information from Ms C and the Council. Both parties had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

‘Getting the best from complaints’

10. This statutory guidance sets out how councils should respond to children’s complaints under the Children Act 1989 Representations Procedure (England) Regulations 2006. Councils can only deviate from the guidance in exceptional circumstances.
11. The complaints procedure involves three stages: a local response, an independent investigation and a review panel. Complainants have the right to take their complaint through all three stages.
12. In certain circumstances, the complaint can be referred to the Ombudsman after stage 2 of the procedure. The following criteria must be met:
• all significant complaints relating to service delivery must have been upheld at stage 2;
• the council must have agreed to meet most of the complainant’s desired outcomes; and
• the complainant must agree to the early referral.

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020

13. These temporary regulations allowed councils leeway on the children’s complaints procedure’s stage 3 timescales.
14. The regulations allowed councils to arrange panel hearings and issue stage 3 responses ‘as soon as reasonably practicable’, rather than within the timescales set out in the statutory guidance.

The Ombudsman’s guidance on remedies

15. When we find evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong.
16. When we decide financial remedies, they are not intended to be punitive and we do not award compensation in the way that a court might. Instead, we recommend symbolic payments which ‘recognise’ an injustice.
17. A remedy payment for distress is often between £100 and £300 (although in cases where the distress was severe or prolonged, more may be justified).
18. If a complainant is denied a service, and this is fault, we may recommend the service is provided. But if the benefit of the service can no longer be recovered, we consider the impact of the fault as avoidable distress. The remedy will usually be a payment in line with our guidelines.

My findings

The Council’s early referral

19. The Council did not hold a review panel to consider Mr B’s complaint, saying that, in light of the national coronavirus lockdown, it would not (at that time) be practical or safe to review the complaint at stage 3 of the procedure.
20. The temporary coronavirus regulations allowed councils to delay arranging stage 3 panels, if it was not reasonably practicable to arrange them within the timescales set in the guidance. But the regulations did not allow councils to stop holding panel hearings entirely.
21. Given that the early referral criteria were not met in Mr B’s case, the Council should have arranged a review panel, even if this meant a delay until it became practical and safe to hold the hearing.
22. Ordinarily we would insist that councils properly complete the children’s complaints procedure, and in similar circumstances would send the complaint back for a stage 3 review. But Mr B has already been waiting for a very long time. In my view, sending the complaint back to stage 3 would simply prolong the delay.
23. Because of this, I have decided to investigate Mr B’s complaint, and I make no recommendations of the Council on this point.

Ms C’s request for compensation

24. There is very little difference in opinion between Ms C and the Council about the level of fault. The disagreement is about the remedy Mr B should receive.
25. As set out above, when we consider remedies (including financial ones) we aim to put the complainant back in the position they would have been in if there had been no fault. And all remedies must be closely linked to injustice.
26. In Mr B’s case, the Council’s failure to apply for his DLA meant he did not receive payments to which he was entitled. It is unlikely the money from the payments would have been sat in his bank account all these years, so his injustice is not that he is now £44,000 poorer than he should be. Instead, his injustice is that he missed the opportunity to spend the money on things which would have been of benefit to him.
27. Because of the passage of time, this benefit can not, in my view, ever be recovered. So, as set out in our remedies guidance, Mr B’s injustice was avoidable distress, rather than a quantifiable financial loss.
28. This distress can certainly be considered ‘prolonged’, and therefore justifies a remedy above the Ombudsman’s usual £100-£300 range. But the Council has already offered him £3,000.
29. Given that we do not recommend compensation in the way a court might, the Council’s financial remedy offer significantly exceeds the usual range set out in our guidance, and it has given an explanation for its offer which does not appear obviously unreasonable, there are no grounds for me to recommend the offer be increased.
30. Because of this, although the Council was at fault for failing to apply for DLA on Mr B’s behalf, I have made no further recommendations to remedy his injustice.

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Final decision

31. The Council was at fault for failing to arrange a review panel to consider Mr B’s complaint. It was also at fault for failing to apply for DLA for Mr B while he was a looked-after child. It has already offered a suitable remedy for his injustice.

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Investigator's decision on behalf of the Ombudsman