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Surrey County Council (16 014 321)

Category : Children's care services > Other

Decision : Upheld

Decision date : 30 Mar 2017

The Ombudsman's final decision:

Summary: The Council was at fault in failing to consider Mr X’s complaints under the stages of the children’s statutory complaints procedure in early 2016. These proceedings are now concluded so the Council will investigate his complaints under the statutory process now.

The complaint

  1. The complainant, whom I shall call Mr X, says the Council wrongly:
      1. refused to progress his initial complaint about its children’s services team in 2015 to stage 2 of the statutory social services complaints procedure; and
      2. wrongly refused to consider further complaints he submitted in October 2015 under the statutory complaints procedure at all.

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The Ombudsman’s role and powers

  1. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, we would not normally re-investigate it. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
  2. If we are satisfied with a council’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

  1. I discussed the complaint with Mr X and carefully considered the information he provided with his complaint which included copies of his correspondence with the Council on his complaint in 2015 and 2016. I wrote to Mr X and the Council with my draft decision and considered their comments before reaching a final decision on the complaint.
  2. Under the information sharing agreement between the Local Government 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

  1. Statutory guidance “Getting the best from Complaints” states at paragraph 3.1.5 that where a complaint is accepted at stage 1 of the complaints procedure the complainant is entitled to pursue their complaint further through the procedure. “...once a complaint has entered stage 1, the local authority is obliged to ensure that the complaint proceeds to Stages 2 and 3 of this procedure, if that is the complainant’s wish”.
  2. The Children Act 1989 requires councils to consider complaints from a child or young person (or his or her parent) if he or she is looked after by the Council or a child in need but not looked after by the council. Paragraph 2.7.1 of the statutory guidance says that where a complaint is received from a representative acting on behalf of a child or young person the council should normally confirm that the young person is happy for the complaint to be made. The Council has discretion to decide whether or not the representative is suitable to act as the child’s representative.
  3. Paragraph 2.5.1 of the statutory guidance says that the complaints procedure does not apply when the person complaining does not meet the requirement of who may complain, the complaint is not in regards of the actions or decisions of the Council or the complaint has already been dealt with at all stages of the procedure. Paragraph 2.5.2 says the council has discretion to consider complaints where to do so would prejudice court proceedings, tribunals, disciplinary proceedings or criminal proceedings. The guidance goes on to say that the council should write to the complainant if it decides to use its discretion to not investigate, give reasons for this and says that once the concurrent investigation is concluded the complainant may resubmit their complaint as long as they do this within one year of the outcome of that concurrent investigation.
  4. Under the Children Act 1989 a child who is assessed as “in need” may be accommodated under section 20 of the Act if a parent consents to this. An accommodated child is looked after by the council and usually lives with a foster carer or in a residential care home. A court may award a council a care order where it considers a child is at risk of “significant harm”. The Council has parental responsibility for a child for whom it has a care order.

What happened

Background

  1. Mr X’s daughter, Y, was living with him until August 2015. In August following an allegation that Mr X had physically abused/assaulted Y, she ceased living with him and was accommodated under section 20 of the Children Act 1989. In April 2016 the Council initiated care proceedings. The Council was awarded a full care order in respect of Y in October 2016 and Y is currently placed in a residential care home.

Mr X’s complaints

  1. Mr X submitted his first complaint in September 2015. He complained that:
    • The decision to place Y at her boyfriend’s home in August 2015 was inappropriate;
    • The Council had not consulted him or sought his consent for Y to be interviewed about the assault;
    • The Council delayed completing a medical examination of Y (in relation to the assault);
    • Y’s social worker wrongly accused Mr X of being defensive and aggressive in a telephone call;
    • The social worker prevented him from speaking to a manager and deliberately gave him wrong information about making a complaint;
    • The social worker was obstructive and dismissive;
    • The social worker’s behaviour was unacceptable – she intimidated and bullied him into signing paperwork related to the section 20 accommodation agreement; and
    • The level of support the Council’s children’s services team had provided over the previous three years was inadequate and had led to the situation in August 2015.
  2. The Council began its consideration of this complaint under the statutory procedure and provided a response at stage 1 of the procedure in late September. It did not uphold most of the complaint and told Mr X of his right to progress to stage 2 if he was dissatisfied with the stage 1 response.
  3. On 9 October 2015 Mr X asked for the matter to be escalated to stage 2 of the procedure. On 27 October the complaints manager replied stating Mr X had not said why he was dissatisfied with the stage 1 response and had not stated what outcome he was seeking.
  4. In his email of 9 October Mr X also added a number of other complaints. In brief these were:
    • The stage 1 response was not provided in the required 10 working days;
    • Y’s care plan after she was accommodated was not completed within the required 10 working days;
    • the looked after review for Y was not completed in the required 20 working days from the date she was accommodated;
    • details of Y’s autism were not provided at the initial strategy meeting. The refusal to allow him to see the minutes of this meeting or to make representations about it breached his human rights;
    • the care plan did not obtain or address his wishes and feelings;
    • the Independent Reviewing Officer (IRO) failed to provide him with reports and plans relating to Y;
    • the social worker failed to ensure the Child and Adolescent Mental Health Service attended Y’s looked after review meeting;
    • there were no grounds for the Council to exclude Mr X from Y’s looked after review meeting and this breached Mr X’s human rights;
    • the Council did not provide Mr X with sufficient notice of a meeting and delayed providing him with a copy of Y’s care plan;
    • the Council failed to promote Y’s contact with him whilst he was subject to police bail conditions which prevented him from seeing Y and this breached his human rights;
    • the Council wrongly delayed conducting an “Achieving Best Evidence” interview with Y and this delayed the police reaching a decision on whether or not it should prosecute him and this breached his human rights; and
    • his requests for information about insurance matters and benefits were not dealt with.
  5. The complaints manager stated she would not investigate some of these complaints as they had not been included in the earlier complaint so could not therefore be progressed to stage 2. She said that others alleged the Council had contravened the human rights act and so asked for further information on these points. The complaints manger also said she would need to seek clarification from the police about the criminal case against Mr X as this would take precedence over the complaints process.
  6. Mr X says he replied to the Council’s letter of 27 October shortly after but received no response. He contacted the Council again in February 2016 by which time the police had decided not pursue any criminal prosecution against him. He asked to pursue his complaint to stage 3 of the statutory complaints procedure. In her response the complaints manager said she had not received an earlier response to her 27 October letter. She said she had, however, spoken to Y’s social worker and decided that, having taken account of Y’s wishes and feelings, it was not in Y’s best interests for his complaints to be dealt with under the statutory complaints procedure. The complaints manager advised Mr X to approach this office if he wished to seek further advice on her decision.
  7. Mr X responded to the complaint’s manager’s email on the same day. He stated it was his understanding that the Council was required to consider his complaint that had already been considered at stage 1 of the procedure at stage 2 if he requested this. He asked the Council to review its decision not to consider his complaint at stage 2 of the statutory complaints procedure.
  8. In response the complaints manager stated that the statutory guidance provides her with discretion to decline to consider a complaint if she did not consider it would be in the interests of the young person/child to do so. She reiterated her view that she did not consider it was in Y’s best interest to consider his complaint. Again she advised Mr X to complain to this office.
  9. Mr X did complain to this office shortly after. We reached a decision that as the Council had, by that time, initiated care proceedings we would not investigate his complaint while these proceedings were ongoing. The final decision at that time stated “The Court has a role and duty to consider Y’s welfare and care. Some of the issues Mr X raise overlap with the events the Court will need to consider. The Ombudsman may be able to investigate Ms X’s complaint once the proceedings have finished”
  10. The care proceedings were completed in October 2016. Mr X asked this office to consider whether it could not consider his complaint in December 2016.
  11. Mr X has provided a copy of the court’s final decision in which it states “...the court declaring that the Local Authority’s use of section 20 in this case was unlawful, that Surrey County Council failed to bring proceedings in a proper and timely way and that this was in breach of the respect that must be shown to Y and her father’s right to a fair trial and right to respect for private and family life under articles 6 and 8 of the European Convention on Human Rights...”. The court said the Council should apologise to Mr X for this.

Is the council at fault and did this cause injustice to Mr X?

  1. Given the concurrent consideration of criminal proceedings against Mr X in Autumn of 2015 I can see that the Council was entitled to consider its discretionary powers on whether it should consider Mr X’s complaint at that time.
  2. When Mr X re-approached the Council in February 2016 the police had decided not to pursue criminal proceedings. I do not see that the Council had grounds to refuse to escalate Mr X’s complaint at that time. Mr X qualifies as a person “who may complain” as he is the parent of a child being looked after by the Council. The Council was therefore required to consider a complaint from Mr X. The Council said that Mr X had not provided details of his dissatisfaction with the stage 1 consideration and had not provided details of the outcome he wanted. As it had not upheld most of his complaints at stage 1 Mr X was clearly dissatisfied with this and wanted further consideration by an independent investigator. I do not see that further reason was required at that point. I accept that Mr X had not provided details of what outcome he wanted but this could have been discussed with the investigator and independent person when appointed. I therefore consider the Council was at fault in failing to consider those parts of Mr X’s complaint which related to the service he had received in relation to the first complaint at stage 2 then. However as the Council initiated care proceedings around two months later it seems likely that any stage 2 investigation would then have been suspended in any case so there is little injustice as a result of this fault.
  3. At the end of the care proceedings I consider the Council was in a position to consider the September 2015 complaint at stage 2. The court reached a decision on the lawfulness of Y’s accommodation under section 20 so this is not a matter for the Council to consider under the complaints procedure.
  4. The Council had discretion on whether it should accept a complaint from Mr X on his daughter’s behalf and some of the complaints he first submitted in October 2015 would seem to have been on Y’s behalf. The Council says its social workers did not consider he was suitable to complain on her behalf and so its decision on this would seem to be one that it was entitled to reach. However there are other parts of that October complaint that clearly relate to the service provided to Mr X and which would seem to qualify for consideration at stage 1 of the statutory procedure. I consider the Council’s failure to consider these further complaints at stage 1 on the grounds given at the time amounts to fault. Again however it seems likely that any investigation would have been suspended as a result of the possible criminal proceedings against him and then the care proceedings. So any injustice was minimal.

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Agreed action

  1. The Council will provide a response at stage 1 of the statutory procedure to those parts of the October 2015 that relate to the service provided to Mr X now.
  2. The Council will consider Mr X’s September 2015 complaint at stage 2 of the statutory process now.
  3. If Mr X is unhappy with the outcome of the stage 1 consideration on the October complaint the Council could consider combining any investigation of that complaint at stage 2 with that being undertaken on the September complaint.
  4. The Council will undertake the agreed actions within a month of the date of this decision statement.

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Final decision

  1. The Council did not have grounds to refuse to progress the complaint Mr X first submitted in September 2015 to stage 2 of the process after the police decided not to pursue the matter in early 2016. However it is likely that any investigation started then would have been suspended due to the initiation of care proceedings shortly after so this fault did not result in significant injustice to Mr X.
  2. The Council can investigate those parts of Mr X’s October 2015 complaint that related to him under the statutory procedure. It could have started this after the decision not to pursue criminal proceedings against him in early 2016. Again, however, this fault caused minimal injustice as any investigation was likely to have been suspended at the start of care proceedings shortly after.
  3. The Council will investigate these matters under the statutory procedure now.

 

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Investigator's decision on behalf of the Ombudsman

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