Summary: Mr and Mrs D complained the Council failed to properly carry out the recommendations proposed by its review panel, causing them inconvenience, stress and to spend time following up the recommendations. The Council said it had completed the recommended action. The Council acted with fault as set out by its review panel and has agreed to remedy the injustice caused.

The complaint

1. Mr and Mrs D complained the Council failed to:

• properly carry out the recommendations proposed by the independent investigator and Stage Three Review Panel and accepted by the Council; and
• consider offering a financial remedy to reflect the distress caused by the Council’s failings.

2. Mr and Mrs D say these failings have caused inconvenience and distress. They want the Council to recognise that by making a public apology, completing the recommendations of the Review Panel, and through a financial remedy.

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What I have investigated

3. I have investigated:

• the delay in the complaint investigation;
• whether the Council carried out and completed the recommendations proposed by the review panel; and
• whether the Council has remedied the injustice identified in its complaints process.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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.

How I considered this complaint

9. I have spoken with Mr and Mrs D by telephone and considered the correspondence in support of this complaint.
10. I have made enquiries with the Council and considered the documentation provided.
11. I have sent a draft to Mr and Mrs D and the Council and have considered their comments.

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What I found

Children’s social care complaints

12. The Children Act 1989 imposed a duty on councils to adopt a formal procedure to deal with complaints about children’s services. It is supported by the Children Act 1989, Representations Procedure (England) Regulations 2006 and “Getting the Best from Complaints” guidance 2006.
13. 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. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless we consider that investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

What Happened

14. In July 2018, Mr and Mrs D complained to the Council about its involvement with their child. The complaint listed twenty separate complaint points.
15. The Council investigated Mr and Mrs D’s complaint under the statutory complaints process. It replied in early September 2018.
16. In its Stage One reply the Council said it:

• fully upheld five complaints; and
• partially upheld three complaints.

17. The Council noted three broad themes in the complaint namely:

• consultation issues;
• delegated authority; and
• compensation and the expectation there would be a public apology via the previous social work team.

18. The Council said a previous social worker had undertaken an earlier investigation and had told Mr and Mrs D that she would discuss the issue of compensation with the assistant director. It said this had not been actively followed up by the social worker, but had since discussed compensation with the assistant director and had taken the view this was not suitable in this case. It said it would explain the reasons for this later in the letter.
19. The Council admitted there had been delay but explained that this was due to operational issues.
20. Mr and Mrs D were not satisfied with the Stage One response and made two requests in writing to the Council in August and September 2018 for their complaint be progressed to Stage Two.
21. In September 2018 the Council appointed an Independent Investigating Officer (IO) and Independent Person (IP). The IO finished the Stage Two report in early January 2019.
22. The report considered sixteen separate complaints. The IO fully upheld one complaint and found that a manager did not make urgent contact with Mr or Mrs D on two separate occasions in July 2018 and failed to follow instructions from a senior manager. The IO’s report acknowledged the manager and social worker said they had unrealistic demands placed upon them.
23. The investigating officer partially upheld five complaints finding the Council had:

• failed to respond to the complaint within the recommended timescales for a complaint at Stage One of the Statutory Complaints Procedure;
• failed to share the Looked After Child (LAC) Reports in advance of the scheduled LAC Review;
• not telephoned Mr and Mrs D regarding their child’s disclosure in July 2018;
• not obtained Mr and Mrs D’s consent for a group photograph which contained their child; and

• failed to ensure incidents involving Mr and Mrs D’s child were reported to them in a timely fashion, particularly an incident in July 2018.

24. The Stage Two complaint recommended the Council should:

• apologise to Mr and Mrs D for the failures the report highlighted;
• ensure that complaints at Stage One of the statutory complaints procedure are responded to within the recommended time scales;
• share LAC reports with parents and carers prior to the LAC reviews so that their comments can be provided;
• be clear regarding their own expectation for communicating with parents and carers; and
• ensure that any agreed actions that are documented in the placement plan and delegated authority form are undertaken.

25. Mr and Mrs D told the Council they were unhappy with the outcome of the Stage Two investigation and requested the complaint be considered at a Stage Three in March 2019.
26. During the Stage Three panel investigation Mr and Mrs D said they wanted the Council to;

• give a public apology;
• show it had learned lessons from this complaint;
• hold persons accountable for what had happened; and
• be recompensed for the faults identified.

27. The panel wrote to Mr and Mrs D in October 2019 with its findings. The panel concluded that after hearing representations from Mr and Mrs D and the Council it was satisfied that the Stage Two investigation had been thorough, properly undertaken, and that the findings and recommendations had been a fair conclusion of findings.
28. The panel recommended the Council should:

• send a further apology from the chief executive to Mr and Mrs D;
• revisit the meaning of ‘significant’ matters to give staff greater clarity to staff;
• offer reassurance that communication and processes had improved; and
• take a proactive approach in dealing with cultural awareness.

29. The panel noted it could not recommend the remedy Mr and Mrs D had asked for, namely disciplinary measures against staff and compensation, because this is not within its remit.
30. In October 2019 the Council wrote to Mr and Mrs D accepting the findings of the Stage Three review panel. It said it had apologised in writing to Mr and Mrs D and said it reiterated the verbal apology given at the review panel for the failures upheld in the Stage Two report and that it:

• would learn from complaints and ensure feedback; and ensure that this was clear for all staff;
• would send out a newsletter to social workers ensuring positive points were built upon and give clear guidance in areas that need to improve; and
• review support and guidance for staff to improve cultural awareness.

31. Mr and Mrs D were not satisfied with the Council’s response and felt it had not completed or implemented the recommendations set out by the review panel. They complained to the Ombudsman in November 2020.
32. I asked the Council to report what progress it had made in completing the recommendations of the panel. In response the Council said it had:

• apologised both verbally and in writing to Mr and Mrs D;
• undertaken a focussed piece of work to improve completion of Stage One complaints;
• embedded a quality assurance programme across social work;
• provided quality assurance of Stage One complaints by a senior social worker which has improved timeliness;
• implemented an internal system called ‘Practice Standards and Procedures’ which is well used by staff leading to best practice in sharing reports;
• shared LAC reports with parents in a timely manner and that their views are taken into consideration;
• launched a diversity and inclusion group, including further training and advice for foster carers and social workers.

33. The Council says it only considers making a financial payment where it considered any fault identified had caused harm or trauma to the complainant.

Analysis

34. My role is to examine whether the Council properly conducted an investigation into the complaint using the three-stage process. If I find it has not, it is open to me to look at the decision itself. If it has properly completed the investigation, then I may consider if the remedy offered will address the injustice arising from the faults found.
35. I am satisfied the Council properly investigated the complaint and accepted the recommendations made by the Independent Investigating Officer and Stage Three review panel. However, at Stage One of the procedure it failed to respond within ten working days or within the additional ten working days recommended in the statutory guidance. The response took 52 days for which the Council apologised. The Council were at fault for that delay as well as for the faults upheld by the review panel. The delay did not affect the Review Panel’s final decision.
36. The Council has shown that it has now complied with all the recommendations in the Panel’s decision. However, the Panel found it did not have the powers to consider whether a financial remedy was appropriate. The Council agreed with the Panel’s recommendations, however, its current practice restricted it from making a financial remedy. This was fault because this restricts the Council’s discretion to consider payments for the impact of full range of fault and the injustice, including that caused to Mr and Mrs D. Therefore, I have considered if the action taken, and the apology given is enough to remedy the injustice arising from the faults identified by the review panel and the delay to the complaints’ procedure.
37. The Council failed to provide LAC reports in advance of LAC meetings, denying Mr and Mrs D the opportunity to fully consider them ahead of time. The failure to call Mr and Mrs D to tell them of the incident involving the child in 2018 and report the incident without delay caused significant distress and concern. Similarly failing to ask their consent to a group photograph caused additional anxiety. The delay to the complaints procedure although caused by operational difficulties and the complexity of the case caused Mr and Mrs D frustration and distress and to lose faith in the procedure.
38. Under our ‘Guidance on Remedies’ we try to place people in the position they would have been but for the fault identified. In this case that would place Mr and Mrs D in the position of being told of the incident in July 2018 by telephone, asked about consent for the group photograph; given the LAC Reports at least three days ahead of scheduled meetings and no delays in the complaint procedure. Clearly, we cannot now put Mr and Mrs D in that position, so we consider a symbolic payment appropriate. The payment is in recognition of the avoidable and significant distress of hearing about this incident later and the failure to tell Mr and Mrs D at the time, coupled with the other poor practice I have listed and delays in considering the complaint.

Agreed action

39. By 10 August 2021 the Council has agreed to:

• apologise in writing to Mr and Mrs D for avoidable distress and delay;
• pay Mr and Mrs D £500 for the avoidable distress, delay, frustration and inconvenience; and

By 5 October 2021 the Council has agreed to:

• review the criteria used to decide when a symbolic financial remedy may be offered to address faults similar to those I have identified in this statement.

Final decision

40. I find fault with the Council as set out by the review panel and in its failure to consider a financial remedy. While the Council has already apologised and completed the recommendations set out in both the Stage Two and Three reviews, I am not satisfied the offered remedy is suitable. The Council has agreed to remedy the injustice caused to Mr and Mrs D.

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Parts of the complaint that I did not investigate

41. I did not investigate those parts of Mr and Mrs D’s complaint the Council did not uphold during its original investigation because we only investigate complaints where we find significant fault in the conduct of the statutory complaints procedure, which does not apply to this complaint.

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Investigator's decision on behalf of the Ombudsman