The Ombudsman's final decision:
Summary: The Council was at fault for refusing to investigate Mr B’s complaint under stage 2 of the Children Act complaints procedure. Care proceedings are now ongoing in relation to C’s care. When these proceedings have concluded, the Council has agreed to write to Mr B and advise him that he can resubmit his complaint. This will remedy Mr B’s injustice.
- The complainant, whom I refer to as Mr B, complains about the support the Council provided to him when his son moved to live with him. I refer to his son as C. Mr B says the Council’s lack of support led to his son being placed into care.
The Ombudsman’s role and powers
- 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)
- 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)
- 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.
How I considered this complaint
- I spoke to Mr B about his complaint, and considered information from Mr B and the Council. I wrote to Mr B and the Council with my draft decision and gave them an opportunity to comment.
What I found
- In March 2016 the Council asked Mr B if he wanted to start having contact with C, with the possibility of C going to live with him. Mr B agreed to this and contact began in April. In July, after court proceedings, C came to live with Mr B, with a Supervision Order in place.
- In November Mr B asked the Council for support with caring for C. By January 2017 Mr B was not happy with the support the Council had provided, so he made a formal complaint to the Council. He made a further complaint in February.
- In April the Council responded to both of Mr B’s complaints. Although the complaint response did not tell Mr B that he could progress his complaint to stage 2 of the statutory complaints procedure, the Council says it always includes a leaflet with its complaint responses which explains people’s rights to progress complaints.
- In August Mr B submitted another complaint, most of which repeated issues he had complained about in January and February. He also said he could not cope with C anymore and asked the Council to take C into care.
- The Council placed C in care shortly after receiving the complaint, with Mr B’s consent. However it did not respond to his complaint. It says it had responded to the issues complained about in April, and did not consider an independent investigation of the complaint to be in C’s best interests. It also says Mr B was aggressive to a Council officer when he attempted to pursue the complaint.
- On 23 August Mr B complained to the Ombudsman. We told him he had not yet completed the three-stage Children Act complaints procedure. We asked the Council to investigate Mr B’s complaint of 18 August, either at stage 1 of the procedure or – if the Council’s April response was stage 1 – at stage 2.
- On 5 December the Council emailed us to say it had not yet processed Mr B’s complaint. On 7 December it said it would not do so because Mr B did not ask for a stage 2 investigation, the Council would have nothing to add after stage 1, and care proceedings had been initiated.
- Care proceedings are still ongoing. Although Mr B is a party to proceedings, he has not attended court.
Law and guidance
Children Act 1989
- Section 26(3) of the Act says councils should establish a procedure for considering complaints made by looked-after children and children in need. It says this procedure should also apply to consideration of complaints made by parents of such children about councils’ actions in relation to the children.
Children Act Representations Procedure (England) Regulations 2006
- Regulation 12 says that, if the complainant is not the child concerned, the child’s parent or someone with parental responsibility, or a local authority foster carer, councils must decide whether the complainant has sufficient interest in the welfare of the child before considering the complaint.
- Regulation 15 says that, if a complainant is not happy with a council’s stage 1 response to their complaint, they can ask that it is considered at stage 2. Regulation 17 says that, if a council has received such a request, it must progress the complaint to stage 2.
- Regulation 8 says councils can refuse to consider a complaint if to do so could prejudice concurrent court proceedings; however, after the proceedings are concluded, a complainant can resubmit the complaint for the council to consider.
‘Getting the best from complaints’
- This document sets out statutory guidance to councils on how they should manage the Children Act complaints procedure. Only in exceptional circumstances may councils justify a variation to the guidance.
- Paragraph 3.5.8 says there is no time limit for a complainant to submit a stage 2 complaint after receiving a stage 1 response.
- Annex 5 sets out how councils should deal with unacceptable behaviour from complainants. It says:
When the authority considers that a complainant’s behaviour is unacceptable it should tell him why it finds his behaviour unreasonable and ask him to change it. If the unacceptable behaviour continues, the authority may wish to take action to restrict the complainant’s contact with its offices.
Where a complainant continues to behave in a way which is unacceptable, the local authority may decide to terminate contact with the complainant and discontinue any investigation into the complaint.
- Mr B has complained about how the Council supported his family after C began living with him. Before considering the issues Mr B has complained about, I must ensure that his complaint has been fully considered by the Council in accordance with the Children Act complaints procedure.
- The Council says Mr B did not request a stage 2 investigation after it had issued its stage 1 response in April 2017, but when he complained about the same issues again in August it considered whether to progress the complaint to stage 2. It says it did not do so because it did not consider the complaint to be in C’s best interests, it had nothing to add to its previous response, and Mr B was aggressive on the telephone. It also says court proceedings are ongoing.
- Although Mr B did not request a stage 2 investigation in April, there is no time limit in which he should have done so. He wrote to the Council four months later and clearly did not feel the Council’s stage 1 response had addressed his complaint.
- Although the Council did not feel it had anything to add to its previous response, this was not the Council’s decision to make, given that the second stage of the complaints procedure is an independent investigation. It would be for the investigator to decide whether the Council’s previous response had addressed the issues raised.
- I do not consider the Council’s decision to reject Mr B’s complaint on the grounds that it would not have been in C’s best interests to have been made in line with the Children Act or the Regulations. Mr B is C’s parent, and therefore has a right to complain about actions the Council has taken in discharging its functions – in relation to C – under Part III of the Children Act. The Regulations give councils discretion to decide if a complainant has sufficient interest in a child’s welfare in some circumstances, but not if they are a parent of the child concerned.
- The Council has said Mr B was aggressive when he spoke to the Council about his complaint in August 2017. Annex 5 of the statutory guidance sets out how councils should respond to complainants they consider to be behaving unacceptably, with the end result, potentially, being that they stop investigating a complaint. It does not appear that the Council took these steps before deciding not to consider Mr B’s complaint.
- As a result, I have found the Council to be at fault in its decision not to investigate Mr B’s August 2017 complaint at stage 2 of the Children Act complaints procedure. I do not consider that the reasons given for its refusal justify a departure from the Regulations or statutory guidance.
- The Ombudsman, having previously considered the above points in September 2017, has already asked the Council to consider the complaint. However the Council has said it will not do so because of ongoing court proceedings (as well as the reasons it had previously given).
- It is true that, according to the Regulations, councils can stop investigating a complaint if to continue the investigation would prejudice court proceedings. However, complainants can resubmit their complaint after the court proceedings have finished. The Council should let Mr B know when the proceedings are over, at which point he can decide if he still wants his complaint to be looked into.
- The Council has agreed that – when the court proceedings related to C’s care have concluded – it will write to Mr B and advise him that he can resubmit his complaint for consideration under stage 2 of the Children Act complaints procedure.
- This action should be completed within two weeks of the conclusion of the court proceedings.
- The Council was at fault for refusing to investigate Mr B’s complaint under stage 2 of the Children Act complaints procedure. The agreed action remedies Mr B’s injustice.
Investigator's decision on behalf of the Ombudsman