Summary: We find fault with the Council for refusing to consider Mr B’s complaint through the children’s statutory complaint procedure. This caused Mr B an injustice. The Council agrees actions to remedy the injustice.

The complaint

1. Mr B complains about the care, support and education he received as a child when he was in the care of the Council. He complained to the Council after he read his social care records but the Council refused to consider his complaint.
2. Mr B says he has suffered significant distress because of his childhood experiences in care and it continues to affect his mental health and wellbeing. He says the Council has added to the distress by refusing to investigate his complaints.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I spoke to Mr B and considered the information he provided with his complaint. I made enquiries with the Council and considered its response along with relevant law and guidance.
7. Mr B and the Council had opportunity to comment on draft decision. I carefully considered all the comments I received before I reach a final decision.

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What I found

Law and guidance

Statutory complaints procedure

8. 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.
9. Councils do not need to consider complaints made more than one year after the grounds to make the representation arose (regulation 9). However, decisions need to be made on a case-by-case basis and there should generally be a presumption in favour of accepting the complaint unless there is good reason against it.
10. The time limit can be extended at the Council’s discretion if it is still possible to consider the representations effectively and efficiently. Councils may also wish to consider such complaints if it would be unreasonable to expect the complainant to have made the complaint earlier. For example, where the child was not able to make the complaint or did not feel confident in bringing it forward in the year time limit.
11. Though not exclusive, possible grounds for accepting a complaint made after one year are:
• genuine issues of vulnerability;
• the local authority believes that there is still benefit to the complainant in proceeding;
• there is likely to be sufficient access to information or individuals involved at the time, to enable an effective and fair investigation to be carried out; and
• action should be taken in light of human rights-based legislation.
12. 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

13. Mr B was under the care of the Council from the age of nine. As an adult he requested access to his files from the time he was in care. When he read the files he had questions and concerns about the care, support and education he received. He also had questions about the decisions the Council made about these issues.
14. He complained to the Council in 2020. Some of the points he put to the Council were complaints but there were also a lot of questions about the information he read in his files.
15. The Council refused to consider his complaint through the statutory complaint process. It said because of the time that had elapsed it did not believe it could effectively investigate the issues he raised.
16. The Council said it wanted to support Mr B to understand his care history and appointed a social worker to review files and provide information about the contents.
17. Mr B says when the social worker contacted him the explanation of their role was not what he expected and he did not feel it would achieve the outcome he wanted.
18. Mr B remained unhappy with the Council’s response and complained to the Ombudsman.
19. In response to our enquiries the Council said:
• Given the time that elapsed since the events it did not believe it could investigate the issues effectively and efficiently.
• Many of the staff involved were no longer working for the Council.
• It was keen to support Mr B in any way to answer the questions he had.

My findings

20. The Council is right it does not have to consider complaints made more than one year after the grounds for the complaint arose. However, the guidance also says decisions need to be made on a case-by-case basis and there should generally be a presumption in favour of accepting the complaint unless there is good reason against it.
21. I asked the Council how it considered the grounds set out in paragraph 11 above. It failed to consider Mr B’s vulnerability and the benefit to Mr B of proceeding with the complaint.
22. The Councils relied on the lack of access to individuals and information as its reason for refusing Mr B’s complaint. Whilst I accept the point about individuals, I do not accept the point about information. Mr B’s complaint stems from the information he read in his files. The Council has access to these files and could review them as part of its investigation. Mr B also accessed information from other organisations, and it would be open to the Council to do the same.
23. Mr B raised legitimate questions and concerns about his time as a child in the Council’s care. It is positive the Councils recognises this and wants to support Mr B to understand more about his care history. But it should not deny him the opportunity to have his complaint considered independently through the statutory complaint’s procedure.
24. There may be some parts of the complaint that cannot be investigated for the reasons it set out in its response, but there may be others where the information the Council has access to is sufficient to allow a finding to be made. The Council cannot be sure of this until it investigates.
25. I find fault with the Council for refusing to investigate Mr B’s complaint using the statutory complaint process. This caused Mr B an injustice because it denied him access to an independent investigation.
26. Mr B also experienced the additional time and trouble of bringing his complaint to us.

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Agreed action

27. Within one month of my final decision the Council agrees to:
• Pay Mr B £250 for his time and trouble pursuing his complaint.
• Appoint an Investigating Officer and Independent Person to investigate Mr B’s complaint at stage two of the statutory complaint procedure.
• Consider Mr B’s request for advocacy support for the statutory complaint process. The Council should be able to explain its decision making if it does not provide an advocate for Mr B.

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Final decision

28. I find fault with the Council causing injustice.

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Parts of the complaint that I did not investigate

29. I did not investigate the substantive issues Mr B complained about. Once Mr B’s complaint has completed the statutory complaints procedure, he can ask us to consider the substantive complaint if he remains dissatisfied.

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Investigator's decision on behalf of the Ombudsman