London Borough of Brent (23 019 377)

Category : Children's care services > Looked after children

Decision : Upheld

Decision date : 05 Nov 2024

The Ombudsman's final decision:

Summary: Ms X complained on behalf of Y. Ms X said the statutory complaints process failed to address the injustice caused to Y by the Councils failure to provide support to them as a looked after child. There was no fault in how the Council investigated the complaint under the statutory children’s complaints procedure. We therefore have no grounds to question or reinvestigate its findings and the Council provided evidence it carried out the recommendations made. However, the Council was at fault for delay in completing the stage 2 investigation and delay in holding the stage 3 review panel. The Council will apologise, pay Y a symbolic payment and act to improve its services.

The complaint

  1. Ms X complained on behalf of Y. Ms X said the Council failed to provide Y educational support, failed to provide support with obtaining travel documents and delayed obtaining legal advice after Y had an accident. Ms X said the Council failed to respond adequately through the statutory complaints procedure. Ms X said this caused Y mental distress, Y missed education to which they were entitled and Y was put to avoidable time and trouble chasing travel documents and legal advice for their insurance claim.

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The Ombudsman’s role and powers

  1. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
  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)
  4. 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 the final decision with Ofsted.

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How I considered this complaint

  1. I considered:
    • the information Ms X and Y provided about the complaint and spoke to Ms X and Y on the telephone;
    • the information the Council provided in response to my enquiries;
    • relevant law and guidance, as set out below; and
    • our guidance on remedies, published on our website.
  2. Ms X, Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Looked after children and care leavers

  1. Under section 20 of the Children Act 1989 a council has a duty to accommodate a child if no-one has parental responsibility for the child/young person, the child is lost or abandoned or the person caring for the child is unable to continue to provide care and accommodation. Accommodation is usually provided in the form of placement with, for example, family and friends, a foster placement or a residential placement including supported lodgings or hostels.
  2. Where a child is accommodated under section 20, they become a looked after child and the Council has a number of responsibilities for looked after children in its care and when they leave care.

Statutory complaints procedure

  1. 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.
        1. Stage 1: is local resolution and should be completed in a maximum of 20 working days. The regulations say that, if a complainant is not happy with a council’s stage 1 response, they can ask that it is considered at stage 2.
        2. Stage 2: is an investigation. The council appoints an Investigating Officer (IO) (not an independent officer) to complete the investigation and an Independent Person (IP) to ensure its impartiality and thoroughness. After the IO and IP have produced their reports, a senior manager considers them and prepares the councils response to the findings. This is the adjudication. The entire stage two should take no more than 65 working days. If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review.
        3. Stage 3: is a review panel. It is made up of three independent people. The panel considers the adequacy of the stage two investigation. It can seek more information if needed to resolve the complaint but should not generally reinvestigate or consider new complaints. The panel makes findings on each complaint element and can make new recommendations. The panel should be held within 30 working days of the complainant request. After the hearing, a relevant director considers its findings and issues the council’s adjudication within 20 working days.

No reinvestigation if process complete and not flawed

  1. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
  2. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.

What happened

Background

  1. Y moved to the United Kingdom several years ago and was a looked after young person and now has settled status.
  2. At first Y’s age was disputed. Several age assessments were conducted before Y’s age was agreed. The age dispute meant at first Y was not offered a school place and received private tuition. Y wanted to be in a mainstream school. Y attended several different school and college placements over the next few years.
  3. In 2021 Y was in a road traffic accident and suffered an injury which needed physiotherapy. Y also applied for travel documents. Y said their social worker did not provide a letter of support for their travel document which they needed by late February 2023.

Y’s complaint

  1. In early March 2023 Y asked Ms X to become their advocate and Ms X complained to the Council on behalf of Y and said:
    • Y did not receive support from the Council with their education;
    • in 2021 Y was in a road traffic accident and the Council did not help Y with their insurance claim;
    • Y did not receive support with getting travel documents;
    • Y would like to move accommodation but their social worker did not help with that; and
    • Y wanted support from the Council with their education, insurance claim, travel documents and move to more suitable accommodation, they also wanted an apology and compensation.

Stage 1 complaint response

  1. In late March 2023 the Council responded to the complaint and said:
    • it could not uphold Y’s claims their social worker did not help Y with receiving an education and getting a college qualification and it had tried to reengage Y with education. It said Y attended a specific school, School 1;
    • Y’s social worker had helped Y with their insurance claim and Y’s social worker had arranged meetings with relevant people and filled in the relevant forms. The Council apologised for the delay in receiving legal advice to process the insurance claim;
    • Y’s social worker needed more information to provide a letter of support to get Y’s travel documents. It could not agree Y was not supported and no further action would be taken until more information was provided by Y;
    • Y would have to pay for the travel application they made because they did not speak to the foster carer or social worker before making the application; and
    • Y’s request for new housing was taken seriously. The Council said it was a continuing issue and Y’s social worker would continue to support Y.
  2. In late March 2023 Ms X responded to the stage 1 complaint response and asked for a formal investigation at stage 2. Ms X said Y disagreed with school places the Council said it offered, Y said they did not attend School 1 and wanted more educational support. Ms X said Y disagreed with the response to the travel documents and wanted support with applying for them. Y said they wanted less restrictive housing choices. Y appreciated the apology for the delay with the insurance claim.

Stage 2 complaint

  1. The Council appointed an independent person (IP) and investigating officer (IO) to investigate the complaint. A statement of complaint was written in mid-May 2023 and Y approved the statement of complaint in early June 2023. The Council apologised for the delay in sending the statement of complaint to Y. In response to my enquiries the Council said the statement of complaint was finalised in mid-June 2023. The IO report was finalised in late August 2023.
  2. The IO report said:
    • it did not uphold Y’s complaint there was a lack of support from the Council with their education and they wanted to attend mainstream schooling;
    • it upheld Y’s complaint they did not attend School 1 and the stage 1 response was wrong to say Y had attended School 1;
    • it did not uphold Y’s complaint their social worker did not help them with completing school applications. The report said it was satisfied the Council supported Y with their education and helped with completing applications and considered Y’s feelings;
    • it did not uphold Y’s complaint they did not receive support to help them stay at an educational placement;
    • it upheld Y’s complaint there were delays with providing a letter and documentation in support of their travel application;
    • it upheld Y’s complaint there had been a lack of consistent support from the Council with their insurance claim. The report said the Council could have provided more clarity at the start about its role and level of input and there was delay from the time the social worker received the document to when legal advice was received.
  3. The IO recommended the Council:
    • apologised to Y;
    • considered a financial remedy for avoidable distress and delay;
    • provided relevant staff with the stage 2 report and adjudication letter so they could reflect on practices and identify any further learning;
    • reminded relevant officers to quickly progress travel document requests and reminded management to take notes of management decisions to preserve an audit trail; and
    • reminded relevant officers of the need for clarity with their role and input for insurance claims.
  4. The IP agreed with the findings, conclusions and outcomes from the IO report and supported the recommendations.
  5. The Council accepted the findings by the IP and IO and:
    • apologised for the failings identified in the stage 2 report;
    • said outcomes would be shared to prevent the same errors occurring in the future and it would remind relevant officers of the stage 2 recommendation actions;
    • asked a manager to raise with the Council’s legal team to consider how it could assist with Y’s insurance claim and update Y; and
    • offered Y £100 for failings identified in the stage 2 report;
  6. In mid-September 2023 the Council sent Y its stage 2 adjudication letter. In late-September 2023 Ms X said Y was unhappy with the stage 2 response and asked the Council to consider the complaint by a stage 3 review panel.

Stage 3 review panel

  1. In early November 2023 the Council held a mediation meeting with Y and Ms X. Y was unhappy with the outcome. The Council said because of the Christmas period and arranging a suitable time and date for the stage 3 panel, the panel was not held until late January 2024. The Council provided evidence it kept Ms X and Y up-to-date with the stage 3 panel arrangements.
  2. The panel reviewed all the complaints in the stage 2 investigation that were not upheld and agreed with the stage 2 investigation report and those complaints remained unchanged.
  3. The panel made the following two recommendations to the Council including:
    • the Council should find a solicitor to form a pre-action letter for Y’s insurance claim; and
    • the Council should consider increasing the amount of compensation for Y’s travel documents because of further delay which occurred and the emotional impact on Y when they were without travel documentation.
  4. The panel made two further recommendations including:
    • Y should see their doctor to discuss a referral for investigation of, and possible treatment of, their injury; and
    • Y should engage with a service manager.
  5. The Council accepted the recommendations of the stage 3 panel and said the Council legal team were finding a solicitor to assist Y with the pre-action letter. The Council offered Y an extra £100 compensation to the offer of £250 already made.
  6. In mid-February 2024 the Council sent Y and Ms X the stage 3 adjudication letter.
  7. Ms X said Y remained unhappy and Ms X complained to us.

Enquiries

  1. In response to my enquiries the Council provided evidence that the stage 2 and stage 3 recommendations had been carried out.

My findings

  1. As previously explained, with complaints of this type, we only reinvestigate the substantive matters where we consider there is evidence of one or more fundamental flaws in how the statutory complaints procedure was carried out.
  2. There is no evidence of such a flaw here. The Council escalated Y’s complaint at each stage as Ms X requested it. It appointed an independent IO and IP to conduct stage 2, and an independent panel for stage 3, and followed each with an adjudication letter in which it accepted all findings and recommendations. Both the IO / IP and panel had access to the Council’s records and met with the available people relevant to the complaint. It addressed all the complaints made and set out the reasons for the findings made.
  3. The Council offered Y a financial remedy to reflect the failings identified and increased the remedy at stage 3. This remedy was in line with the Ombudsman’s guidance on remedies. The Council has also provided evidence it has actioned the recommendations in the stage 2 investigation and stage 3 panel review.
  4. Taking this together, I do not have any grounds to find the Council’s investigation was fundamentally flawed. Instead, I am satisfied it was robustly undertaken and drew logical findings from the evidence available. Under these circumstances, it is not appropriate for the Ombudsman to reinvestigate the substantive complaints, because there is no reason to believe we would make substantially different findings.
  5. However, there was delay with the stage 2 investigation which was fault. Following the stage 1 response Ms X escalated Y’s complaint in writing for a stage 2 investigation in late March 2023. The statutory guidance, ‘Getting the Best from Complaints’ says if the complaint was not made orally and a stage 1 was completed the start date for the stage 2 is when the complaint was made. The Council had a maximum of 65 working days to complete the stage 2 investigation which would have been late June 2023. The Council did not send the adjudication letter until mid-September 2023 which was a delay of around two and a half months. This delay caused Y frustration.
  6. There was also delay with holding the stage 3 review panel. Ms X escalated Y’s complaint in late-September 2023. The regulations say the panel should be held within 30 working days of the complainant’s request. The panel did not take place until late January 2024 which is a delay of about two and a half months and caused Y further frustration. The delay was in part because the Council tried to mediate first which was unsuccessful however this is not part of the stage 3 process. It was also over the Christmas period and there were delays with setting a review panel date. However the Council was still at fault.
  7. The Council sent the stage 3 adjudication letter within 20 working days of the panel review meeting. This was in line with the statutory timescale guidelines and the Council acted correctly.

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Agreed action

  1. Within one month of the final decision the Council will:
    • apologise and pay Y a total of £200 for the frustration caused to them by the stage 2 and stage 3 delays; and
    • remind relevant staff of the need to complete the children's statutory complaints procedure within the statutory timescales.

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Final decision

  1. I have completed my investigation finding fault and injustice. The Council has agreed to take actions to remedy the injustice caused and prevent reoccurrence of the fault.

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Investigator's decision on behalf of the Ombudsman

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