Summary: Mr X complained about the Council’s management of his support needs as a care leaver, and delays handling his complaint. Mr X said this caused stress and anxiety, and cost him time and trouble. Largely we do not find the Council at fault. However, we find the Council at fault for delays in complaint handling. The Council has agreed to make a payment to Mr X to remedy the injustice caused by the delays.

The complaint

1. The complainant, who I refer to here as Mr X, complained about the Council’s management of his support needs, following his move to independence as a care leaver. He also complained about delays handling his complaint.
2. Mr X said this affected his mental health and wellbeing, and caused stress and anxiety which led to him having to withdraw from his studies. He said the Council failed to pay the agreed amount for his support which led to debt. He said the delays in complaint handling cost him time and trouble.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’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 considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
8. I considered the relevant statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

9. The government published statutory guidance, ‘Getting the Best from Complaints’, which sets out a three-stage procedure that councils follow when considering certain complaints about children’s social care services.
10. If both parties agree that the complaint should be investigated at stage two of the complaints process, then there is no need to complete stage one. Stage two begins either when the complainant asks for it, or where parties agree that stage one is not appropriate.
11. At stage two, the council appoints an independent Investigating Officer to investigate the complaint, and an Independent Person who is responsible for overseeing the investigation. The council will appoint a senior manager to adjudicate on the findings.
12. The guidance sets out timescales within which certain actions should be completed. It says that a council has 25 working days to produce the Investigating Officer’s report and its own adjudication on the Investigating Officer’s findings. This can be extended to 65 working days because in certain circumstances 25 working days may not be sufficient or practical.
13. The Investigating Officer’s report (stage two report) should include details of their findings and recommendations on how to remedy any injustice to the complainant.
14. The complainant can then ask the council to convene an independent review panel. This forms the third stage of the complaints procedure. The review panel will consider the adequacy of the independent stage two investigation and will decide whether the complainant’s desired outcomes have been addressed.
15. The guidance says a council has 30 working days to arrange and hold the stage three review panel. The panel has five working days to issue its findings. The council then has 15 working days to respond to the panel’s findings.
16. If a council has investigated a complaint under this statutory procedure, the Ombudsman does not normally re-investigate the original complaints unless we consider the investigation was flawed. Instead, we will look at whether a council properly considered the findings and recommendations of the independent investigation and review panel.
17. The guidance places a duty on the council to act quickly throughout the procedure to make sure the complaint is dealt with as quickly as possible.

What happened

18. Mr X is a care leaver with support needs. Until 2016, the Council made a weekly payment to Mr X for his support. Between 2016 and 2020, the Council did not make these payments to Mr X.
19. In April 2021, Mr X complained to the Council about a number of issues, including the lack of support. At the end of April, Mr X agreed with the Council that stage one should be bypassed, and the complaint should be investigated at stage two of the statutory complaints procedure.
20. Mr X agreed a statement of complaint with the Investigating Officer (IO) in August.
21. In February 2022, the Council sent Mr X the IO’s stage two report and its stage two adjudication. The IO upheld ten points of Mr X’s complaint, and did not uphold 11 points. The IO made five recommendations.
22. In its stage two adjudication, the Council agreed with the IO’s findings and apologised to Mr X.
23. In March, Mr X asked for stage three.
24. The stage three panel was initially booked for April, but the Council rescheduled it three times.
25. The stage three panel was held in July. The panel upheld six more points of Mr X’s complaint and made no finding on two points of complaint. The panel said it was unwilling to consider two other points of complaint because they related to the Ombudsman.
26. The panel said the Ombudsman was a higher authority than the statutory complaints procedure which guides the process. It said it was inappropriate for the panel to make findings on issues that fall within the Ombudsman’s remit. It said the resolution had to come from the Ombudsman.
27. The panel made five further recommendations to the Council.
28. In August, the Council sent Mr X its response to the stage three panel hearing. It accepted the panel’s findings, apologised, and offered Mr X a payment.

Analysis

Children’s statutory complaints process

29. As I have said above, if a council has investigated a complaint under this statutory procedure, the Ombudsman does not normally re-investigate the original complaints unless we consider the investigation was flawed. Instead, we will look at whether a council properly considered the findings and recommendations of the independent investigation and review panel.
30. I find the Investigating Officer’s stage two investigation was thorough, well-balanced, proportionate, and appropriate. I do not consider the investigation was flawed. I therefore turn to the Council’s consideration of the stage two and stage three findings and recommendations.
31. I find the Council properly considered the findings of both the stage two investigation and the stage three panel. The Council accepted the findings, which upheld the majority of Mr X’s complaint, and has completed the majority of the stage two and three recommendations.
32. I find the Council is not able to complete the outstanding recommendations through no fault of its own. This is because Mr X has not engaged with one of the recommendations, and has not accepted the Council’s financial offer. (I go on to explore this further below.)
33. For these reasons, I do not find the Council at fault.

Delays

34. As I have set out above, the guidance sets out timeframes for each stage of this complaints process.
35. Mr X agreed with the Council in April 2021 that his complaint should bypass stage one and go straight to stage two. The guidance says this is when the ‘clock’ starts.
36. The guidance says the Council has a maximum of 65 working days to complete the stage two investigation and provide its stage two adjudication. The 65 days in this case ended at the end of July 2021. However, the Council completed the stage two investigation and adjudication in February 2022: 138 working days beyond the maximum 65 working days. This is fault.
37. The guidance says councils have 30 working days to arrange and hold a stage three review panel. In this case, Mr X asked for stage three in March 2022. The stage three panel was held in July: 48 working days beyond the 30 days set out in the guidance. This is fault.
38. I find these faults caused Mr X injustice in that they cost him time and trouble.
39. The Council accepts there were delays in this process. It says the delays were due to high volumes of case work, the impact of COVID-19, and the Investigating Officer (IO) was off sick for a time.
40. I find that the IO told Mr X in August 2021, when agreeing his statement of complaint, that it was unlikely she would be able to complete her stage two investigation within the 65 days. I find the Council apologised for the delays throughout the process.

Financial offer

41. The stage three panel found that the Council failed to provide Mr X with his assessed level of financial support, in breach of its statutory duty, between 2016 and 2020. In response to the stage three panel’s findings, the Council offered to pay Mr X the weekly amount he began receiving in 2020 from a different council (he moved for his university course), multiplied by the relevant number of weeks.
42. The weekly payment from the other council was based on its assessment of Mr X’s needs. The amount was approximately half the weekly amount the Council had been paying Mr X before 2016.
43. Mr X disagrees with the Council using the other council’s assessed payment amount. He says the Council should pay the amount it had been paying before 2016.
44. The Council did not do an assessment of Mr X’s needs between 2016 and 2020. It is very difficult for the Ombudsman to say Mr X should receive the higher weekly amount for the time period in question. This is because it is not possible to know how his needs had changed during that time.
45. More importantly, I find Mr X told the Council and the stage three panel that the lower weekly amount was acceptable. The panel notes say:

“The panel acknowledged the difference between the complaint figure of [the higher weekly amount] and [the other council]’s payment of [the lower weekly amount]. Mr [X] indicated that the [lower] figure … per week for the period would be acceptable. However the [panel] chair indicated that it was not the function of this hearing to arbitrate between the parties on financial issues but to either uphold or not uphold a complaint.”

46. Mr X agrees that he said he would accept the lower weekly amount during the stage three panel. The Council says it calculated the amount to be paid to Mr X using the lower figure because he agreed with that amount.
47. Further to the panel notes, I have heard an audio recording of the relevant section of the stage three review panel. Mr X said he should have been paid somewhere between the higher and lower amounts. Mr X said:

“Let’s compromise and say [the lower amount] … [The amount the Council should have paid] was at least [the lower amount] so put [the lower amount] on it and let’s not argue about it.”

48. A panel member said, “Very sensible”. The Panel Chair asked the Council if it wanted to comment. The Council representative said she did not think it was appropriate for her to make a comment at that point.
49. A discussion then began to take place between the Council and Mr X about the amount. The Panel Chair intervened almost immediately to say that was not the purpose of the meeting, and discussion may have to happen outside the meeting. The Panel Chair asked Mr X if he understood the logic behind that. Mr X did not directly answer but his advocate/support said yes. The Panel Chair said he did not want to close discussions down, but wanted to acknowledge the parameters of the meeting.
50. Mr X says there was no agreement on the amount. I agree that there was no agreement on the amount during the meeting. This is because the Panel Chair said it was not a discussion to be had during that meeting.
51. I find Mr X said the lower amount would be acceptable and “let's not argue about it”. For this reason, I do not find fault with the Council for considering what Mr X said he would agree to during the meeting and then offering to pay him this amount.
52. I do not agree with Mr X that the Council rejected his offer to accept the lower amount. The Council did not agree to it during the meeting because this was not an agreement that could or should be reached in a stage three review panel, as the Panel Chair rightly pointed out.
53. Mr X says he made the offer of accepting the lower amount because he felt the Council would not agree to the full amount. He says it was a mistake on his part to start with the lower amount. He says the legal advice he since received said that any offer can be withdrawn if it is not accepted. I do not find the Council did not accept the offer. Mr X made the offer, and the Council said it was not appropriate for it to comment. So, I do not find the Council either accepted or rejected his offer.
54. It is not the Council’s fault that Mr X later changed his mind about the amount he would be willing to accept. I cannot find the Council at fault for offering to pay Mr X the amount he said he would accept. The fact that Mr X later changed his mind is not a reason to the find the Council at fault for agreeing to pay him what he said he would accept without further argument.
55. Mr X wants the Council to negotiate with him about the amount. The Council is under no obligation to negotiate the amount with the Mr X. If Mr X wishes to take further legal action about the amount, he can.
56. So far, Mr X has declined the Council’s offer because he says the stage three panel upheld the larger amount. I do not agree that the stage three review panel upheld the larger amount. I find it upheld that part of Mr X’s complaint, which is not the same. As the quote above shows, the panel acknowledged the difference between the weekly amounts in question. The Panel Chair said it was not for the panel to decide which amount should be used.
57. Mr X says he has not declined the offer, but he has asked for it not to be paid immediately. He says the reason for this was that he needed to get financial advice as the payment may impact on his entitlement to benefits and care services.
58. Mr X wants the Council to provide financial advice to help him manage this payment. It is not for the Ombudsman to recommend the Council does this.

Previous Ombudsman decision

59. Part of Mr X’s complaint was to do with a previous Ombudsman decision (made in October 2019) around similar issues. He complained that the Council lied to the Ombudsman, and that the Council failed to complete the agreed remedy for that decision.
60. As I have said above, the stage three panel was unwilling to consider these two points of complaint because they relate to the Ombudsman. The panel said the resolution had to come from the Ombudsman. For this reason, I will address those two points of complaint here.
61. Firstly, Mr X complained that the Council lied to the Ombudsman. The Ombudsman only retains certain documents for 12 months after making a decision. After this, documents are removed from our records (in line with data protection regulations).
62. As Mr X made this complaint more than 12 months after we made our previous decision, we no longer have the information Mr X refers to. Therefore, I will not investigate this further.
63. Secondly, Mr X complained that the Council did not complete the agreed remedy. Our records show that the Council provided evidence which satisfied the Ombudsman it had completed the agreed remedies. Based on our records, I do not find the Council at fault.

Complaint about staff

64. Mr X complained about the way two Council officers communicated with him which he found hurtful and distressing. He says he complained about this in 2020 but says the Council did not deal with that part of his complaint properly because it was dealt with under the Council’s corporate complaints procedure, rather than the statutory children’s complaints procedure.
65. I have seen Mr X’s complaint to the Council in 2021. He said he wanted to complain about an email a member of staff sent him in August 2019. I have seen a complaint response from the Council, dated August 2020, which addresses this part of his complaint. This indicates that Mr X first complained about this issue before August 2020.
66. I am satisfied that the Council investigated this complaint and responded to it appropriately at the time Mr X first raised it. It is for the Council to determine which complaints process to use. In this case, I do not find fault with the Council for using its corporate complaints procedure to address this part of his complaint.
67. Mr X does not agree with the Council’s findings. His disagreement is not evidence of fault.

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Agreed action

68. Within four weeks of this decision, the Council has agreed to make a payment to Mr X of £900. I have considered the Ombudsman’s published guidance on remedies. I find that a payment of £100 per month of delay is appropriate and proportionate, taking into account all the factors in this case.
69. The £900 is made up as follows:
• Stage two was delayed by six and a half months. £100 per month multiplied by six and a half months is £650; and,
• Stage three was delayed by two and a half months. £100 per month multiplied by two and a half months is £250.
70. The Council should provide us with evidence it has complied with the above actions.

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Final decision

71. I have completed my investigation. I find the Council at fault for delays handing Mr X’s complaint. This caused injustice. The Council has agreed to make a payment to Mr X to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman