Summary: Mr Y complains the Council failed to consider a complaint about historic issues he experienced whilst he was a child in care. We find the Council did not properly consider the circumstances around Mr Y’s complaint before deciding it was too old to investigate. The Council will consider Mr Y’s complaint through the statutory children's complaints procedure, pay £100 to Mr Y for his time and trouble and issue a reminder to all staff who handle children’s service complaints.

The complaint

1. Mr Y complains the Council has declined to accept his complaint about its failure to safeguard him as a child. As a result, he says the negative impact of the Council’s failures will not be addressed.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I spoke to Mr Y and considered the complained he made to us. I also had contact with the Council to discuss the complaint made by Mr Y.
5. Mr Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

What should happen

7. 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.
8. Section 3.3 of the guidance explains that councils do not need to consider complaints made more than one year after the grounds to make the complaint arose. Councils can exercise discretion and review complaints after this time frame if it is deemed reasonable to do so.
9. If a council opts not to review a complaint which is over one year old, it should write to the complainant explaining why.
10. Section 22 of the 1989 Children Act sets out the general duty of the local authority looking after a child to safeguard and promote the welfare of the child. This duty underpins all activity by the local authority in relation to looked after children.
    This duty has become known as ‘corporate parenting’. In simple terms, ‘corporate parenting’ means the collective responsibility of the council, elected members, employees, and partner agencies, for providing the best possible care and safeguarding for the children who are looked after by the council.

What happened

11. Mr Y complains about the Council’s involvement in his life during his childhood years between 1976 and 1994. We will not revisit Mr Y’s full complaint here, but broadly he raises concerns about the Council’s failure to intervene whilst he was in the care of his mother. Once the Council did act, Mr Y says it placed him into the care of somebody who was not assessed beforehand.
12. As a result, Mr Y says he has suffered with depression and alcohol dependency for most of his adult life. He wants the Council to investigate his concerns and take responsibility for the way it treated him from birth.
13. Mr Y complained to the Council in 2021. The Council responded to his complaint to confirm that it would not investigate his concerns through the complaint procedure. The Council said its approach was based on legal advice which deemed that it would be “… more appropriate for the concerns to be treated as a formal legal claim for compensation”.
14. In summary, the Council also said:
• access to staff involved at the time of historical allegations is likely to be difficult and this may prevent effective investigation of these complaints.
• allegations of negligence against the corporate parent and/or allegations that the Council breached its statutory duties are more appropriately dealt with as civil claims for compensation.
• courts have a wide discretion to allow personal injury claims to be brought after the three-year statute of limitations if it considers it appropriate to do so.
15. Dissatisfied with the Council’s response, Mr Y approached the LGSCO for an impartial review of his complaint.

Was there fault by the Council causing injustice to Mr Y?

16. The focus of our investigation is whether the Council properly considered Mr Y’s complaint. Under the statutory complaints process the Council can decide, in principle, not to investigate complaints about matters that are over 12 months old. However, we would not expect a council to dismiss such complaints in a standard way solely because they are too old. Rather, we would expect councils to decide what approach it should take on the facts of each case, such as the significance of the issues reported, what records are available in each specific case and what the records show from the period concerned. There should also be consideration about the reasonableness of expecting the complainant to pursue a legal remedy.
17. Where children have been in care, councils are required to maintain records for 75 years from their date of birth. So, records of a child’s time in care should be available. However, it is likely after many years that staff originally involved in Mr Y’s case are no longer employed by the Council.
18. In my view, the Council’s letter to Mr Y rehearsed generic arguments about why a council may not consider a complaint over 12 months old. It should have better explained how the Council considered the circumstances in Mr Y’s particular case when reaching its decision. For example, there is no evidence the Council considered the availability of historic records relating to Mr Y’s complaint or his personal circumstances and ability to take legal action. This is fault.
19. The fault caused injustice to Mr Y. To remedy the injustice, the Council will take the action I have proposed in the following section.

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Agreed action

20. Within four weeks of our final decision, the Council has agreed to:
• Commission an investigation of Mr Y’s complaint at stage two of the statutory children’s complaints procedure;
• Pay £100 to Mr Y in recognition of the failure to consider his complaint properly which necessitated an avoidable complaint to the LGSCO; and
• Remind all staff who respond to children’s social care complaints about the requirement to consider historic complaints on a case-by-case basis before making a reasoned decision on how to progress a complaint.

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Final decision

21. We have completed our investigation with a finding of fault causing injustice which the Council will remedy with the actions listed above.

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Investigator's decision on behalf of the Ombudsman