London Borough of Merton (21 004 099)

Category : Children's care services > Looked after children

Decision : Upheld

Decision date : 07 Jan 2022

The Ombudsman's final decision:

Summary: Mrs X complained about the support and actions of the Council in relation to a child in need who lived with them. She also complained that reports the Council wrote for the courts were flawed and contained false allegations about her. We found the Council was at fault for not considering the complaint through the statutory children’s complaints process.

The complaint

  1. Mrs X complains about issues that occurred in relation for the care that she and her husband were providing for a child in need referred to in this statement as ‘Y’. She says:
    • The Council did not ensure Y received a full-time education.
    • The Council failed to properly support them to deal with Y’s extreme behaviour.
    • The Council failed to take account of the impact that caring for ‘Y’ was having on Mrs X’s mental health.
    • That the Council bullied and pressurised Mr and Mrs X into continuing to care for Y despite Y’s extreme behaviour and difficulties this was causing.
    • That Section 7 reports that a court required of the Council contained severe and false allegations about Mrs X.

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The Ombudsman’s role and powers

  1. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The Ombudsman would normally expect a council and complainant to follow the full complaints procedure.
  2. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
  3. 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)

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How I considered this complaint

  1. I spoke to Mrs X and considered the complaint information she provided us with. I considered the Ombudsman’s jurisdiction and the requirements of the statutory complaints process for complaints about children’s social care services.
  2. Mrs X and the Council 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

Children’s statutory complaints process

  1. Government guidance ‘Getting the best from complaints’ sets out which of a council’s children’s social care functions should be considered under the statutory complaints procedure. These include complaints about the Council’s actions relating to Children in Need.
  2. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
  3. At stage two 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 two investigation, they can ask for a stage three review.
  4. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

  1. In August 2020 Mrs X complained to the Council about the way the Council treated her and her husband regarding care they were providing for a child referred to in this statement as ‘Y’.
  2. Y originally came to live with Mr and Mrs X in August 2019 as a child in need.
  3. In her complaint, Mrs X stated the Council had failed to ensure Y was receiving a full-time education and that the Council had failed to support them to deal with Y’s extreme behaviour. She also complained that social workers had bullied and inappropriately pressurised them to continue to care for Y. Mrs X says the Council failed to take account of the impact that caring for Y was having on her mental health. She explained she suffered with Post Traumatic Stress Disorder (PTSD) and a significant deterioration in her mental health because of the difficulties in caring for Y and because of the Council’s approach to the situation. Mrs X also explained that the situation affected her daughter.
  4. Mrs X also complained that social workers made grossly misleading claims and false allegations about her in Section 7 reports which the Council completed for the courts.
  5. The Council responded to Mrs X’s complaint through its corporate complaints process on 1 September 2020.
  6. Mrs X was dissatisfied with the Council’s response. On 20 October 2020 she requested the complaint was escalated. The Council responded at Stage Two of its corporate complaints process on 9 December 2020. It advised Mrs X that this was its final response and it signposted her to us.
  7. I understand Y left Mr and Mrs X’s care in Spring 2020.

Was there fault causing injustice

  1. The issues Mrs X raised in her complaint related to the Council’s actions concerning a child in need who lived with her and her husband. The law requires certain complaints to be considered through the statutory children’s complaint investigation process. As Y was a child in need, the issues Mrs X raised should have been considered through the statutory complaints process.
  2. The Council is at fault for dealing with Mrs X’s complaint through its corporate complaints process rather than the statutory children’s complaints process. The Council should take action to consider the complaint through the statutory complaints process and to recognise the unnecessary frustration, time and trouble Mrs X was put to as a result of going through the wrong complaints process.
  3. Some elements of Mrs X’s complaint relate to reports written by the council for the court. These are not issues that the law says must be considered through the statutory complaints process. However, the law allows councils discretion to bring these elements into a statutory investigation.
  4. We recognise, sometimes, complaints include some elements that must be considered under the statutory process and some elements that need not be included. However, in these cases we encourage councils to consider using discretion to consider everything together as one investigation where this provides the best outcome for complainants. We would expect the Council to be able to clearly explain any decision to decline to exercise this discretion.

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Agreed action

  1. Within four weeks of my final decision the Council should:
    • Send a written apology to Mrs X.
    • Start an investigation under the children’s statutory complaints procedure. The Council should also specifically consider exercising its discretion to include the complaints Mrs X made about Section 7 reports within the statutory investigation to produce one combined complaint response.
    • Pay Mrs X £250 to acknowledge the unnecessary frustration, time and trouble it has caused by the failing to consider her complaint under the statutory children’s complaint process.
    • Use this case as an example, to ensure staff dealing with complaints are aware of the circumstances when the statutory complaints process should be used for children’s social care services complaints.

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Final decision

  1. There was fault by the Council. As the Council agreed to take the recommended action, I completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman

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