London Borough of Newham (24 002 314)

Category : Children's care services > Looked after children

Decision : Upheld

Decision date : 11 Nov 2024

The Ombudsman's final decision:

Summary: Miss X complained to the Council about its actions when she was in its care as a child and as a care leaver. We found that the Council was at fault for not agreeing to investigate the complaints under the statutory Children Act 1989 complaints’ procedures. The Council has now agreed to start a statutory investigation at stage two without delay. We have therefore completed our investigation and are closing the complaint.

The complaint

  1. The complainant, Miss X, complained to the Council in May 2024 about her time in the Council’s care as a looked after child. The Council was her corporate parent and had responsibilities to her to ensure her best interests and welfare.
  2. Miss X’s complaint was that the Council failed to provide safe and suitable care when Miss X became a looked after child and to support her as a care leaver (placing her in semi-independent accommodation as a teenager), causing a detrimental effect on her mental and physical health and her future because of losing out on education.
  3. The Council declined to investigate Miss X’s complaints because they involved historic matters, and she had not complained within the required twelve months from when she first realised something had gone wrong. The Council also considered that Miss X was better to make a legal claim to its insurers given that she had alleged negligence.
  4. Miss X approached a solicitor, as recommended by the Council, and was advised that she was entitled to have her complaints investigated first by the Council under the statutory Children Act 1989 complaints procedure. And the solicitor said the firm could not assist her.
  5. Miss X has had a very difficult upbringing. She has had access to her children services’ case files but is now waiting for the digital records. Miss X would like the Council to properly address her concerns about how it treated her during her childhood and as a young care leaver.

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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.
  2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended).
  3. The Human Rights Act 1988 sets out the fundamental rights that everyone in the UK is entitled to, including respect for private and family life.
  4. Our remit does not extend to making decisions on whether a council has breached the Human Rights Act. This can only be done by the courts. But we can decide whether or not a body in jurisdiction has had due regard to an individual’s human rights in the treatment of them as part of our consideration of a complaint.
  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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

  1. Miss X was aware that the Council would not investigate her complaints in mid‑2024 and she made her complaint promptly to us about this.
  2. I have not investigated Miss X’s substantive complaint about the Council’s actions when she was a child and a young care leaver. I have only looked at the Council’s refusal to investigate Miss X’s concerns under the statutory Children Act 1989 complaints procedure.

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How I considered this complaint

  1. I have spoken to Miss X on the telephone, and considered the information provided by her and by the Council.
  2. I issued a draft decision statement to the Council and to Miss X, and have taken into account their further views before reaching a final decision.

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What I found-The Children Act 1989

  1. The Children Act 1989 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.
  2. The first stage of the procedure is local resolution. Councils have up to twenty working days to respond.
  3. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
  4. Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
  5. The whole stage two process should be completed within 25 working days, but guidance allows an extension for up to 65 working days where required.
  6. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within thirty working days of the date of request, and then issue a final response within twenty working days of the panel hearing.
  7. The Ombudsman would normally expect a council and complainant to follow the full statutory complaints procedure.
  8. The guidance sets out the circumstances in which a complaint can be referred to the Ombudsman without completing all three stages. This can only happen when the stage two investigation is robust with all complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.

Getting the Best from Complaints guidance

  1. The guidance was issued in 2006. It states (3.3) that councils do not need to consider complaints made more than one year after the grounds to make a complaint arose.
  2. But this time limit can be extended at the council’s discretion if it is still possible to consider representations effectively and efficiently. Councils may also wish to consider complaints if it would be unreasonable to expect an individual 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 in the year time limit.
  3. The guidance says that 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 a good reason against it.
  4. At 3.3.3 of the guidance, though not exclusive, possible grounds for accepting a complaint made after one year are:
  • genuine issues of vulnerability;
  • the local authority (council) 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; and
  • action should be taken in light of human rights-based legislation.
  1. The guidance also says that the concerns of children and young people should be listened to. Councils are required to provide a child or young person with information about advocacy services (independent of the council) and to offer to help them in finding an advocate.

Key facts

  1. Miss X came into care at a young age under a Care Order to the Council. Miss X is now a young adult and is entitled to services from the Council as a leaving care young person.
  2. Miss X asked for access to her files. Miss X says that, in 2022, the Council sent her paper copies of her extensive files. But some information was redacted, and Miss X thinks she may not have seen all her records. Miss X has now asked for her digital records.
  3. Miss X says she was not offered help in accessing her children services’ records. Miss X raised concerns at this stage with the leaving care team.
  4. Miss X made a written complaint in mid-2024 to the Council’s complaints department, claiming negligence and a breach of a duty of care to her as a child. The Council told her it could not pursue the complaint because it was over twelve months old. But it invited her to meet/speak to an independent mediator to try to resolve her concerns. The Council also gave her the name of some organisations who might be able to support her. The Council encouraged Miss X to seek legal advice should she wish to make a civil claim.
  5. Miss X continued to ask for her complaint to be investigated. The Council told her each case was considered on its own merits and there had been discussions with the leaving care team. But due to the seriousness and magnitude of her complaint, the Council suggested that she make a legal claim to its insurers. The Council advised her to seek legal advice.
  6. Miss X says that she sought legal advice. That legal advice was that she should pursue her complaints under the statutory Children Act complaint procedures, and she had a right to do so.

Findings

  1. The 2006 guidance is clear about councils’ duties to consider its discretion to investigate complaints, even though out of time, and the guidance provides advice how councils should consider that discretion.
  2. My view is that the Council has been at fault for failing to properly consider its discretion to investigate Miss X’s complaints. And, it has failed to tell Miss X about this discretion, except to tell her that each case is considered on its individual merits and there had been a discussion with the leaving care team.
  3. I also consider that, had the Council considered its discretion, it would have had to consider the guidance set out in paragraph 27. And if it had, on the balance of probability, I consider it would have found that Miss X met the four criteria;
  • that she is vulnerable;
  • that it would be a significant benefit to her to have some examination and explanation for the Council’s decisions while she was in its care as a child;
  • that there will be reliable information because the Council was duty bound to keep care records (even if the individual social workers have left) and there should be separate fostering and legal files available; and
  • Miss X has a right to know about how the Council, as her corporate parent, made its decisions about where she lived as a child.
  1. The Council also had a duty to protect her from harm and safeguard her best interests.
  2. It is also clear that there are no concurrent court proceedings. And the legal advice which Miss X has received endorses the view that she is entitled to have an investigation under the statutory complaints’ procedure.
  3. Accordingly, my view is that the Council has been at fault in that it has not considered its discretion properly to investigate Miss X’s complaints out of time. Had it done so, it is likely the Council would have been satisfied that Miss X meet the threshold for investigation.
  4. Miss X has been caused avoidable distress and time and trouble by the Council in its failure to consider its discretion properly.

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Agreed action

  1. As I have found fault causing injustice by the Council, I have considered how to remedy this.
  2. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
  3. We also support organisational learning and improvements to help others.
  4. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
  5. To the Council’s credit, it readily agreed the recommended actions to remedy the injustice caused by its earlier faults. So, within two weeks of my final statement, the Council will:
      1. apologise to Miss X for its failure to consider the requirements and guidance properly under the guidance Getting the Best from Complaints;
      2. make a symbolic payment of £250 for Miss X’s time and trouble in pursuing the matter;
      3. appoint an investigator and independent person to undertake a stage two investigation who should agree with Miss X her statement of her complaints;
      4. there will be a considerable amount of information to consider so it is likely the stage two investigation will take time, and longer than 25 days. Miss X will be kept up to date on progress;
      5. help Miss X find an advocate, independent of the Council, as she wants, to help her manage the complaint process and access her children services’ files; and
      6. the Council will issue guidance to its complaint staff to ensure they understand the discretion under the Children Act to investigate complaints out of time, and that they must show how they have considered this discretion.
  6. The Council should provide us with evidence it has complied with the above actions.

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Final decision

  1. I have found fault causing injustice. The Council has agreed the recommended remedy. Therefore, I have completed our investigation, and am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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