Summary: Miss B complained that the Council had refused to consider her late complaint about children’s services through the statutory complaints procedure. We found fault with the Council. The Council has agreed to start an investigation at stage two of the procedure and pay Miss B £150.

The complaint

1. Miss B complained that Lincolnshire County Council (the Council) unreasonably refused to consider her complaint about children’s services through the statutory complaints procedure. This has caused Miss B frustration and distress.

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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 have considered the complaint and the documents provided by the complainant, and the Council. I have also considered the guidance on the statutory children’s complaints procedure, the Ombudsman’s focus report ‘Are we getting the best from children’s social care complaints?’ published in March 2015 and guide for practitioners about the statutory complaints procedure published in March 2021.
5. Under our information sharing agreement, we will share the final decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Statutory complaints procedure

6. The law sets out a three-stage procedure for councils to follow when looking at most complaints about children’s social care services. The accompanying statutory guidance, Getting the Best from Complaints, explains councils’ responsibilities in more detail.
7. The guidance says in terms of time limits that a council does not need to consider complaints made more than one year after the grounds to make the representation arose. But it goes on to say:

“…decisions need to 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 against it.”

8. It says the time limit can be extended at the council’s discretion if it is still possible to consider the complaint effectively and efficiently. It also says that councils may wish to consider complaints if 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.
9. The guidance includes the following possible grounds for accepting late complaints:
• genuine issues of vulnerability;
• the local authority believes that there is still benefit to the complainant in proceeding;
• 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.
10. We published a guide for practitioners about the statutory complaints procedure in March 2021. This reiterated our expectation that complaints should progress through all three stages of the procedure. Neither the regulations nor the guidance allow a council to refuse to progress a complaint because it believes there is no worthwhile outcome to be achieved.

What happened

11. Miss B was involved with the Council’s children’s services from the age of 14. She also stayed in a psychiatric hospital when she was 16/17.
12. On 17 February 2022, when she was 21, she complained to the Council about:
• The failure to refer her from children’s services to the adult mental health team.
• The lack of support from the Council before, during and after her stay in hospital, meaning she ended up with her abusive father.
• The fact she had no school to go to and no education.
13. She felt that if she had received more support she may not have ended up in hospital. She wanted a formal written apology, and an acknowledgement from the Council of how she was treated.
14. On 23 February 2022 the Council wrote to her refusing to put her complaint through the statutory complaints procedure. It said:

“As you know, LCC’s Complaints Policy does not cover complaints which are made more than one year after the complainant became aware of the issue (unless in exceptional circumstances) – this is because such complaints can be difficult to investigate fully or fairly.

On this occasion, we are unable to investigate the concerns you have raised; therefore, we will be unable to process your complaint.”

15. Miss B then complained to us.
16. In response to my enquiries the Council said:
• Miss B was getting support from the hospital for two years which was the best possible intervention for her.
• The records were complete but staff who made the records are no longer employed by the Council.
• It did not consider it was possible to consider the complaint effectively or efficiently because any investigation would be automatically limited because the staff would not be available for interview and the period of time which had passed. It said this would be a disservice to Miss B.
• It did not wish to provide a response based only on the information in the records because it would be unable to ask direct questions of the staff involved at the time and so it would not be able to achieve the outcome Miss B was seeking.

Analysis

17. The statutory guidance is weighted in favour of considering complaints which are made more than 12 months after the events complained about happened. It gives councils a wide discretion to consider older complaints particularly where children were unable to make the complaint at the time.
18. I consider Miss B fits the criteria to exercise that discretion because:
• she is a vulnerable care leaver;
• the most recent events were only three years old when she made her complaint and she had been trying to establish some security in her life during that period after coming out of hospital;
• the records are complete;
• it is for Miss B to decide if making the complaint would be beneficial to her, not for the Council to decide that it would be detrimental;
• as the records are complete it is likely the Council will at least be able to explain what happened with some reasoning, even if staff are no longer employed;
• the Council has not indicated if all staff involved with Miss B’s case have left or whether any are still contactable; and
• some of Miss B’s outcomes are achievable: a formal written apology and an acknowledgement of what happened.
19. I do not consider the Council properly considered the guidance in deciding whether to accept the complaint or not. The letter wrongly referred only to the Council’s complaints procedure and said it could only consider complaints outside 12 months in exceptional circumstances. This is not in accordance with the guidance and was fault. It also gave no reasons why it had not exercised its discretion.
20. The Council has latterly given a more detailed explanation, but I maintain my view that the reasons do not justify the refusal to investigate. I accept there may be limitations in how much detail can be established, but without at least starting the process and exploring the issues raised I do not consider the Council has provided sufficient evidence to justify its decision.
21. This has caused Miss B continuing frustration and distress in addition to her time and trouble in complaining to us, which has further delayed consideration of her complaint.

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Agreed action

22. In recognition of the injustice caused to Miss B I recommend the Council within one month of the date of the final decision:
• starts an investigation at stage two of the statutory complaints procedure; and,
• pays Miss B £150.

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Final decision

23. I consider this is a proportionate way of putting right the injustice caused to Miss B and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman