Summary: Mr X complained the Council failed to carry out a sufficiently independent and robust investigation into his children’s statutory complaint. The Council was at fault for failing to investigate Mr X’s concerns about some of the care homes he lived in. This caused avoidable Mr X distress. The Council has agreed to apologise.

The complaint

1. Mr X complained the Council failed to carry out a sufficiently independent and robust investigation into his children’s statutory complaint. Specifically, Mr X complained:
1. the Council did not investigate the complaint as he made it. He said it missed out some of his allegations;
2. the Council refused to investigate all the organisations involved with him as a child;
3. the investigation was inadequate because it did not access of all his records. Mr X also felt the Council withheld some files from the reviewer and redacted others;
4. the Council did not interview all staff involved with him and the quality of the interviews was poor; and
5. it did not uphold his complaint.
2. Mr X said this caused him significant distress and frustration. He wanted the Council to acknowledge it was responsible for his negative experiences as a looked after child and pay him compensation.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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). Mr X complained about issues with the Council's complaints handling before it carried out the children’s statutory complaint investigation. These events occurred from 2015 to 2018. I have seen no reason to exercise discretion to investigate this period. Mr X completed the Council's complaints procedure at that time and it was reasonable to expect him to have complained to the Ombudsman when he remained dissatisfied.

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How I considered this complaint

7. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
8. Mr 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

Relevant law and guidance

Looked after children

9. Councils are responsible for the safeguarding and wellbeing of all looked after children in their care. There are a number of ways that children become ‘looked after’ by a council. One is when a court grants a care order. This is when the judge decides to place the child in the care of the council for their safety and wellbeing.

Complaints

10. The statutory children’s complaint process was set up to give children and those representing them an opportunity for a thorough independent investigation of their concerns. The statutory process can be used to investigate certain functions of the council as specified by the Children Act 1989 Representations Procedure (England) Regulations 2006. “Getting the Best from Complaints” (the Guidance) is statutory guidance which explains how councils should carry out complaint investigations. It explains that councils can choose to investigate the actions of bodies acting on its behalf such as children’s homes. It does not have the jurisdiction to investigate the actions of bodies acting independently, even if they are involved in children’s social care.
11. The statutory process has three stages:
• Stage one - local resolution by the council.
• Stage two – an investigation by an investigating officer (IO) who will prepare a detailed report and findings. At the start of the investigation, the Council meets with the complainant to agree a statement of complaint. The investigation is overseen by an independent person (IP) to ensure its impartiality. The council then issues an adjudication letter which sets out its response to the findings. The stage two investigation, including adjudication should be completed in no less than 65 working days after the date the statement of complaint is agreed.
• Stage three – an independent panel to consider their outstanding issues. The panel should consider the findings and include time for the panel members to ask questions.
12. The Ombudsman has issued guidance on the children’s statutory complaints process. It says that if a complainant does not agree a statement of complaint at stage two, the council can proceed with the investigation if it is satisfied it understands what the complaint is about.

What happened

13. In the early 2000’s, Mr X became a looked after child due to concerns about the care he received from his mother. The Council placed Mr X with other family members under a fostering arrangement before moving him to a children’s home (Home A). The placement at Home A later broke down and the Council moved him to a number of other children’s homes in subsequent years. Mr X decided he wanted to live with his mother again just before he turned eighteen.
14. Mr X complained to the Council about its care throughout 2015 and 2018. It responded and Mr X completed its complaints procedure. He remained unhappy and continued to contact the Council. In 2019, to resolve Mr X’s concerns, the Council agreed to investigate using the children’s statutory complaints procedure. Because Mr X had already received complaints responses, the Council put his complaint straight to stage two of the procedure. It appointed the investigating officer (IO) and independent person (IP) in late May 2019.
15. The IO and IP held three meetings with Mr X in June and July 2019 to produce a statement of complaint. The Council does not have records of the meetings but records suggest that, in summary, Mr X said that throughout the period he was a looked after child he was exposed to neglect and abuse, was not protected from harm, and was poorly supported by the Council. He raised concerns about the entire period the Council was involved with him, including his stays at Council arranged accommodation after he left Home A.
16. Mr X did not agree to the statement of complaint because he was waiting on documents he had requested from the Council using a Subject Access Request. He also wanted the Council to investigate all organisations involved in his care including the Police, local Fire and Rescue Service and Ofsted. Mr X repeatedly questioned the independence and robustness of the investigation. The Council decided it understood what Mr X was complaining about sufficiently to begin investigation.
17. The IO began reviewing documents in early September 2019. They explained to Mr X that they would be unable to complete the investigation in 65 working days because of the size of the complaint. Mr X confirmed he understood.
18. From September 2019 to April 2020, the IO interviewed fifteen people including members of staff from the Council's Children’s Services and managers of some of the placements Mr X stayed at. Some individuals, including the manager of Home A, refused or did not respond to requests for interview. The IO also reviewed a large volume of documents including Mr X’s case records, minutes of looked after child review meetings and records from Home A.
19. During that time, the Council contacted Mr X to ask him to direct the IO to the files he specifically wanted them to review. It twice asked him to send information he had which he said would impact on the IO’s findings. Mr X did not send the information or direct the IO to the files he felt they should see.
20. In February 2020, Mr X began the process of taking the Council to court over its response to his Subject Access Request. He felt the Council had withheld information and over-redacted other information which would allow him to show it had neglected him and exposed him to abuse.
21. In late May 2020, the IO sent the investigation report to the Council for comment. The IO issued an updated report to the Council and Mr X in early October 2020. Records show the delay in sending the updated report was because of issues related to the COVID-19 pandemic and because key members of staff who needed to comment were on leave. The Council updated Mr X on the delay.
22. In summary, the report found:
• the Council failed to properly safeguard Mr X from risks while he was living with his family members (complaint two);
• Home A was unsuitable for Mr X’s needs at the outset but the Council placed him there anyway (complaints two and five ii);
• the Council significantly delayed removing him from Home A when it became clear the placement was not right. The Council identified he needed to move fifteen months before it found him a new placement. The IO therefore felt he was not appropriately safeguarded overall from potential risk of harm. However, the investigation noted there was no fault in the behaviour of the staff in their attempts to care for and protect on a daily basis (complaint five ii);
• the Council had not responded to Mr X’s earlier complaints in a timely or appropriate way (complaint eight); and
• it did not uphold the rest of Mr X’s complaints, including serious allegations the Council exposed him to neglect and abuse.
23. The IO made seven recommendations to improve the Council's practice. It also recommended the Council apologise to Mr X for the failings identified in the investigation. The IP also produced a report on the investigation. They found it had been in-depth, accurate and objective.
24. In late November, Mr X issued a notification of claim letter to the Council. The letter warned the Council Mr X intended to take it to court over allegations it exposed him to abuse and neglect. Mr X has not yet taken further action.
25. From October to November, the Council tried to arrange a feedback meeting with Mr X. The purpose of the meeting was so Mr X could give his comments on the report and have another opportunity to send the information he felt was relevant. Mr X initially would only attend an in-person meeting and later agreed to a virtual meeting due to the COVID-19 pandemic. However, he cancelled the meeting on the day.
26. The IO therefore finalised the report in mid-December 2020 to avoid further delay. The Council issued its adjudication letter in mid-January 2021.The letter said it agreed with most of the IO’s findings, except the finding of ‘upheld’ on complaints two and five (ii). However, it did not comment further on those points as they were linked to Mr X’s court case. It therefore apologised only for mishandling Mr X’s previous complaint (complaint eight).
27. Mr X requested a stage three panel in late March 2021. The panel did not consider complaints two and five as they were linked to Mr X’s legal claim against the Council. The panel also chose not to consider complaint eight because the Council remedied that fault in its response to the 2015 complaint. It therefore focused on the complaints the IO had not upheld.
28. The panel recommended upholding complaint 6 ii; that a charity support worker arranged by the Council ended their involvement with him without explanation.
29. The Council sent its hearing outcome letter in mid-June 2021. It said:
• it accepted the panel’s recommendation to change the finding on complaint 6ii to upheld and apologised for the fault;
• it recognised Mr X felt the IO had not received or read important information would that change their findings. The panel had suggested it was open to the Council to seek that information from Mr X and to reinvestigate the issues. The Council decided it was satisfied the IO had full unrestricted access to its records. Mr X had had sufficient time to send the information to the IO so it would not seek that information from him and reinvestigate his concerns;
• the stage two investigation had taken longer than the 65 working days it should have done. It offered Mr X £300 as a remedy; and
• it had, on the panel’s advice, reconsidered whether the information Mr X had given as part of his complaint showed it had failed to response to safeguarding issues and respond to Police properly. It decided it had acted appropriately.

Findings

30. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
31. Mr X was unhappy the Council did not investigate his complaint as he made it. He felt the Council should investigate all other bodies involved with him. The Guidance only allows the Council to investigate the actions of other bodies involved in children’s social care under certain circumstances. This includes where bodies are acting on behalf of the Council. It does not include bodies like the Fire Services, Police or Ofsted that do not act on behalf of the Council. The Council acted in accordance with the Guidance so was not at fault.
32. The Council held three meetings with Mr X to explore his statement of complaint. Although Mr X did not agree with the statement, the Council decided it understood the substance of his complaint sufficiently to investigate at stage two. I am satisfied the Council made suitable efforts to understand Mr X’s complaint and identify the main issues before beginning the investigation; it was not at fault.
33. Mr X was unhappy the IO did not consider all his case records, felt the Council withheld information from the IO and tampered with the documents it provided. Statutory complaints investigations do not have to look at all available information. The stage two investigation considered a large number of relevant documents including Mr X’s looked after children review minutes and relevant case records. The IO appropriately interviewed individuals involved with Mr X’s care or who were knowledgeable about the issues he complained of. Mr X had opportunity to send the IO information he felt would affect their findings but did not do so. There is no evidence to suggest the investigation was insufficiently thorough or that the Council hindered it by providing tampered records.
34. On a balance of probabilities, I am satisfied Mr X complained about the entire period the Council was involved in his care. The stage two investigation appropriately considered Mr X’s complaints about his placement with family members, in Home A and the Council's support when he moved in with his mother. However, Mr X also raised concerns about the accommodation he stayed in after Home A. The stage two investigation does not consider that part of Mr X’s complaint and the Council has not explained its reasons for this omission. This was fault and caused Mr X avoidable distress.
35. Where the Ombudsman identifies fault in a statutory complaints procedure investigation we may chose to reinvestigate or ask the Council to do so. However, in this case I have not made such recommendations. This is because Mr X complained about issues over ten years ago. I am unlikely to be able to carry out a sufficiently robust, evidence-based investigation given the length of time that has passed. In addition, Mr X has made clear his intention to seek financial compensation from the Council through the court process because he feels it exposed him to neglect and abuse. The Ombudsman cannot make findings of neglect or assign a compensatory value to that neglect in the way a court can. We therefore could not achieve the outcome Mr X wants.
36. Due to Mr X’s ongoing and proposed court action, I do not think the Council would be willing to investigate his concerns about the care homes. Councils can refuse to consider a complaint if a complainant says they intend to take legal action or if investigating a complaint could prejudice concurrent court proceedings. However, after the proceedings have ended, a complainant can resubmit the complaint for the council to consider. This option is open to Mr X. In addition, I note that Mr X also repeatedly questioned the validity and independence of the statutory procedure so I consider it unlikely he would accept the outcome of any Council investigation. I have therefore recommended an apology.
37. The stage two investigation upheld some elements of Mr X’s complaints. The stage three panel upheld a further complaint and made some additional recommendations. I have considered the recommendations and am satisfied they appropriately remedied the injustice to Mr X and are suitable to prevent the fault occurring again. The Council did not agree with all the stage two findings and therefore did not carry out the recommendations in full. I have not considered this further because it relates to Mr X’s court action.

Timeliness

38. The Council should take no more than 65 working days from the date it confirms a statement of complaint to the date it issues the stage two adjudication letter. The Council took more than a year. However, the investigation was large in scale due to the length of time and issues Mr X complained about. It was also affected by the COVID-19 pandemic. Finally, there was some delay because key members of staff who needed to comment on the findings were on leave and there were challenges arranging a feedback meeting with Mr X. Given the circumstances, I do not consider the delay amounts to fault. The Council also kept Mr X suitably informed of the reasons for the delay. In any event, I note the Council paid Mr X £300 in recognition of the time the investigation took.

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Agreed action

39. Within one month of the date of my final decision, the Council will apologise to Mr X for the distress caused by its failure to investigate his concerns about the children’s homes he lived in after he left Home A.

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Final decision

40. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman