Summary: Mr X complained the Council failed to protect him from abuse and neglect as a child whilst he was in the Council’s care. The Council refused to investigate his complaint, saying the issues were out of time. The Council was at fault as it should have investigated his complaint. Since bringing the complaint to us, the Council has reviewed its decision and decided to open an historic child protection investigation into his complaint. This is an appropriate action. The Council should also make service improvements to help prevent a reoccurrence of the identified fault.

The complaint

1. Mr X complained the Council wrongly refused to investigate his complaint that from 2003, it failed to protect him from abuse and neglect whilst he was in its care.
2. Mr X said this has caused him frustration and distress.

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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 read Mr X’s complaint and spoke with him about it on the phone.
7. I considered information provided by Mr X and the Council.
8. Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Background Information

Looked after Children

9. A child who is assessed as requiring accommodation by a council is called a “Looked After Child”. Accommodation can be provided through a Care Order granted by the Court or by agreement with the parents under section 20 of the Children Act 1989.

Access to records

10. The Care Leavers Regulations 2010 says that a child’s social care records must be kept until the 75th anniversary of the child’s date of birth.
11. Statutory guidance underlines the principles and processes that should be in place in response to requests for access to care records.
12. Requests for access to care files must be made in writing and, if necessary, the care leaver should be supported to make that request.

The children’s statutory complaints procedure

13. This is a formal procedure, set out in law, which councils must follow to investigate certain complaints about children’s services. The procedure aims to ensure concerns are resolved swiftly and, wherever possible, by the people who provide the service locally.
14. Statutory guidance (the Guidance) provides details of what may form the subject of a complaint under this procedure. This includes all council functions within Part 3 of the Children’s Act 1989, which sets out the services councils must provide for children and their families in their area. Generally, assessments and services for looked after children fall under this procedure.
15. The Guidance says:
• Generally, councils do not need to consider complaints made more than one year after the grounds for complaint arose. However, this time limit can be extended at the council’s discretion if it is still possible to consider the complaint effectively and efficiently.
• Decisions should 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 not to.
• Councils should consider whether 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 within the year time limit.
• Possible grounds for accepting a complaint after one year include:
1. Genuine issues of vulnerability
2. The council believes there is still benefit to the complainant in proceeding
3. 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.

Historic child protection investigations

16. A historic child protection investigation may be appropriate where an adult reports that they have suffered abuse as a child. The investigation may include the police and any other relevant agencies or organisations.

What happened

17. Mr X is a young adult. He complained to the Council in November 2021. He complained the Council had failed to protect him from abuse and neglect since 2003 when he became a looked after child, and throughout his childhood in the Council’s care.
18. The Council responded and said it could not investigate his complaints as they were about events that happened over a year ago and were therefore out of time.
19. Mr X was unhappy with this decision and brought his complaint to us.
20. We decided the Council should investigate Mr X’s complaint under the children’s statutory complaints procedure and issued a draft decision asking the Council to start a stage 2 investigation. The Council responded to say:
• It had since completed initial checks on Mr X’s records and his records were now awaiting a full file audit to help the Council decide whether a historical child protection investigation was needed. This audit was due to be completed by 1 May 2022.
• It was not opposed to investigating his complaint under the children’s statutory complaints procedure but did not want to compromise a historic child protection investigation that may include the police and other partners, if this was deemed appropriate once the outcome of the full file audit was known.
• It had not told Mr X it was completing the full audit of his case records but would now do so and apologise for not informing him.
21. In May 2022, the Council told us it had completed its audit and decided to start an historic child protection investigation.

My findings

22. Mr X complained about the Council’s actions when he was a looked after child. These issues fall under the children’s statutory complaints procedure.
23. The Guidance says a Council should use its discretion when deciding whether to investigate complaints about matters that happened more than a year ago and decisions should be made on a case-by-case basis. There should also be a presumption in favour of investigating a complaint. The Council’s response to Mr X said it would not investigate as the complaint was out of time but gave no further explanation for its decision. There is no evidence it appropriately considered whether to use its discretion to investigate his case. This was fault. This led to Mr X feeling frustrated that the Council was unwilling to listen or act to resolve his concerns.
24. Since Mr X brought his complaint to us, the Council has accepted the need to investigate his concerns. Following a full audit of his case records it has decided to start an historical child protection investigation. This is an appropriate action in response to Mr X’s concerns. However, the Council should also make service improvements to help prevent a reoccurrence of the fault I have identified and a similar injustice being caused to others.

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Agreed actions

25. Within one month of the final decision, the Council will:
• Tell Mr X of its decision to open an historic child protection investigation. It should explain this process to Mr X and keep him informed with regular progress updates until the investigation is completed.
• Remind relevant officers of the need to consider whether to use discretion to investigate late complaints about issues which fall under the children’s statutory procedure and of the statutory guidance which should support this decision making.
26. Within three months of the final decision, the Council will provide us with an update on what action it has taken to investigate Mr X’s complaint and the progress of any ongoing investigation.

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Final decision

27. I have completed my investigation. I have found fault and the Council has agreed actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman