Summary: Mrs X complains that the Council has failed to act in the interests of their daughter, Y, and failed to involve her and her wife in Y’s life while she has been in the Council’s care. The Ombudsman finds the Council failed to consider the complaint at Stage two of the statutory complaints procedure. This denied Mrs X the opportunity for independent oversight of her complaint. The Council has agreed to apologise to Mrs X and carry out a Stage two investigation without delay.

The complaint

1. Mrs X complains that the Council has failed to act in the interests of their daughter, Y, and failed to involve her and her wife in Y’s life while she has been in the Council’s care. As a result, Mrs X and her wife have been caused distress and their daughter has been exposed to risk.

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What I have investigated

2. I have only investigated the Council’s action and handling of Mrs X’s complaints.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
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. 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)
6. 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

7. I have spoken to Mrs X and her wife and considered the information they provided in support of their complaint. I considered the information provided by the Council in response to our enquiries. I gave Mrs X and the Council a copy of my draft decision and invited their comments before reaching a final decision on the complaint.
8. I considered the statutory guidance ‘Getting the best from complaints’ which provides guidance for local authorities on implementing complaints procedures for children and young people under the Children Act 1989. I took account of the Ombudsman’s focus report ‘Are we getting the best from children’s social care complaints’ published in March 2015.

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What I found

9. The law sets out a three-Stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, Getting the Best from Complaints, explains councils’ responsibilities in more detail.
10. The guidance says who can complain and what they can complain about. This includes concerns about the appropriateness of a service, unwelcome or disputed decisions, attitudes or behaviour of staff, assessment, care management and review and matters that do not relate to court.
11. The first Stage of the procedure is local resolution. Councils have up to 20 working days to respond.
12. If a complainant is not happy with a council’s Stage one response, they can ask that it is considered at Stage two. The guidance says once a council has accepted a complaint at Stage one, it must ensure the complaint continues to Stages two and three if that is the complainant’s wish.
13. The Ombudsman would normally expect a council and complainant to follow the full complaints procedure. The guidance sets out the circumstances in which a complaint can be referred to the Ombudsman without completing all three Stages. This can only happen when the Stage two investigation is robust with all complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.

What happened in this case

14. Mrs X and her wife are the adoptive parents of Y who is currently a looked after child. Due to problems with Y’s behaviour, she was accommodated by the Council under Section 20 of the Children Act 1989. Subsequently there was a full care order and Deprivation of Liberty Safeguards (DoLS) in favour of the Council. Mrs X and her wife now share parental responsibility for Y with the Council.
15. Mrs X complained to the Council in November 2020. The Council responded to the complaint at Stage one of the statutory complaint procedure. It upheld the concerns raised by Mrs X regarding the actions of the Council.
16. On 22 January 2021 the Council produced an action plan highlighting the issues of the complaint, its response and the outcome. The action plan identified that some of the complaint issues were about the independent care provider. Mrs X remained unsatisfied with the Council’s response and asked to escalate the complaint to Stage two.
17. The Council spoke to Mrs X and her wife and subsequently sent them a letter in February 2021. It said that in relation to the actions of the Council the complaint was upheld on all parts at Stage one and therefore there were no remaining elements to investigate at Stage two. The Council listed three actions that it would take to improve the relationship between Y’s parents and social care staff. The letter also stated that an early referral to the Ombudsman had been agreed by both parties.

Analysis

18. The statutory guidance sates that “Where a complaint is accepted at Stage 1, the complainant is entitled to pursue their complaint further through this procedure except in the case of cross boundary issues. In all other instances, once a complaint has entered Stage 1, the local authority is obliged to ensure that the complaint proceeds to Stages 2 and 3 of this procedure, if that is the complainants wish”
19. The decision about progressing to Stage two lies with the complainant, not the Council. Neither the regulations nor the guidance allow a council to refuse a Stage two complaint because the Stage one complaint was upheld, or because the council thinks there is no substance to the complaint. In this case despite asking the Council to carry out a Stage two the Council failed to do so on the basis that it had upheld the complaint at Stage one. This is fault. It is up to Mrs X to decide If the complaint has been answered satisfactorily, not the Council. Mrs X has been denied the opportunity for independent oversight at Stage two.
20. The Council said an early referral to the Ombudsman had been agreed by both parties. This is fault. The guidance is clear that a council can only consider early referral to the Ombudsman once the Stage 2 has been concluded and the complainant has received the authority’s final position on the complaint. Mrs X has been put to the time and trouble of contacting the Ombudsman to seek redress.

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Agreed action

21. Within four weeks of my final decision, to remedy the injustice caused, the Council will:
• apologise to Mrs X for the faults identified in this statement; and
• appoint an investigating officer and independent person to carry out a Stage two investigation.

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Final decision

22. I have found fault by the Council causing an injustice to Mrs X. The Council has agreed to my recommendations to remedy that injustice. I have completed my investigation on this basis.

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Parts of the complaint that I did not investigate

23. I have not investigated the substantive issues of the complaint because these have not yet been properly considered by the Council.

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Investigator's decision on behalf of the Ombudsman