The Ombudsman's final decision:
Summary: The complainant is concerned that the Council is not offering sufficient support to help in the care of his disabled child. The Council has investigated his complaint at Stage 1 of the statutory Children Act complaints procedure but it has been unwilling to allow the complainant to proceed to the next stage, an independent investigation, at Stage 2. This is fault by the Council. The Council has now agreed to arrange a Stage 2 investigation without further delay. The Ombudsman is satisfied that this resolves the complaint.
- The complainant, who I shall refer to as Mr X, complains about the lack of support to care for his younger disabled son. The Council has replied to his complaint at Stage 1 of the statutory Children Act 1989 complaint procedure. Mr X is dissatisfied with the Council’s complaint response and he has asked for a Stage 2 investigation. The Council was unwilling to do this.
What I have investigated
- I am looking at the way the Council has dealt with Mr X’s complaints and not at the substantive complaint about the lack of support.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have spoken to Mr X and seen some of the Council’s correspondence to him.
- 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.
What I found
- The Children Act 1989 and the Representations Procedure (England) Regulations 2006 provides that, those in receipt of certain services, can make representations or complaints to the Council. The Council has to investigate the complaint subject to certain restrictions.
- There are three stages to the statutory social services complaints procedure. The first stage allows an informal resolution of the complaint. If that is not possible or the complainant remains dissatisfied, the complainant is entitled to a detailed independent investigation of the complaint. The Council may also appoint an Independent Person (IP) to oversee the investigation. At the final stage, an independent Complaints Review Panel can consider the complaint.
- At each stage, the complainant has the right to ask for the complaint to be considered at the next stage of the procedure. Once complainants have completed the statutory complaints procedure, they can refer the complaint to the Local Government Ombudsman, if they remain dissatisfied.
- Getting the Best from Complaints provides detailed guidance on how councils should conduct investigations into complaints. It also says that councils can remedy injustice arising from maladministration.
- There are timescales for the consideration of social care complaints under the procedures. At stage 1, complaints should be considered within ten days and the aim is to resolve matters. At stage 2 councils have sixty-five working days at the most to complete an investigation.
- The guidance states that the expectation is that all complaints should be considered at Stage 1. If the matter is resolved, the council must write to the complainant confirming the agreed resolution. Once the council has entered stage 1, the council is obliged to ensure the complaint proceeds to stages 2 and 3 (subject to certain restrictions), if that is what the complainant wants.
- Annex 3 of the guidance sets out the criteria for an early referral to the Ombudsman. It describes the circumstances in which a council can make an early referral. This can only happen if there has been a robust stage 2 report.
- The guidance makes it clear someone can complain to the Ombudsman at any time. The Ombudsman might exercise discretion to investigate in certain circumstances. But the Ombudsman is unlikely to do so.
- In March 2015, the Ombudsman issued a Focus Report about children’s social care complaints. One of the concerns was that councils were not offering complainants the opportunity to complete the statutory complaints process, as required.
- The Council carried out a Stage 1 investigation of Mr X’s complaints concerning the respite and social care assessments of his younger disabled son. Mr X was not satisfied with the Council’s complaint response. On 3 September 2018, the Council’s Complaints Team wrote to Mr X saying that the Council was unwilling to agree to his request for a Stage 2 investigation.
- The Council told Mr X that this was because there had been a reassessment of his son’s needs and the Council had apologised for the delay in completing this. The Council considered that this was an appropriate remedy for the earlier complaints and that an independent investigation at Stage 2 would be unlikely to recommend a different remedy.
- The Council has told me that the first element of Mr X’s complaint was regarding respite and a request for an increase in package of care. As a result of making the complaint, a re-assessment was undertaken. The Council saw this as a suitable remedy for resolving Mr X’s complaint. It says that the following information was considered from the guidance when reaching its decision not to allow an independent investigation at Stage 2:
“there are a number of methods of resolution that do not require a full investigation that can be applied, including: the provision of an apology or explanation or a reassessment of the children or young person’s needs”
- Further, since making this complaint, the Council says that Mr X has applied for another increase in package of care from 8 hours per week term time/non-term time to 10 hours per week. This was approved in October 2018 and has been applied. This was the main crux of the complaint and therefore the Council considers it has resolved Mr X’s complaint.
- The Council also says that Mr X is a persistent complainant and has made two complaints this year.
- This complaint does not fit the criteria for an early referral to the Ombudsman.
- The Council considers a Stage 2 investigation was not required because it had offered a resolution to Mr X’s complaints which it considers was satisfactory. However, Mr X does not consider it is suitable and he remains dissatisfied with what the Council has offered to date.
- While the Council may consider a Stage 2 investigation is unlikely to change the outcome, it is not possible or appropriate to second guess the conclusions of a Stage 2 independent investigation. Mr X is also entitled to have his concerns dealt with under the statutory complaint process, at Stage 2, if he is dissatisfied with the Stage 1 resolution or this fails to address his concerns. The fact that the Council considers it has provided a reasonable solution is not the determinant factor in deciding whether the complaint can proceed to Stage 2. It is what the complainant considers and, if dissatisfied, he/she is entitled to an independent investigation.
- Moreover, under the statutory complaints procedure, there is not only scope for the Council to resolve the complaint but also to redress any injustice arising from fault. In this case, an offer of a reassessment is helpful for the future. But the injustice arising from the previous lack of appropriate respite has not been considered or fully remedied.
- The Ombudsman expects councils and complainants to exhaust the statutory complaints process before he will investigate. The Ombudsman is the last stage of the statutory complaints process and he will only step in earlier if the facts of the case require this.
- I do not consider this case falls within that criteria and my view is that it is fault by the Council not to agree to a Stage 2 investigation as requested by Mr X.
- I therefore recommended that the Council start a Stage 2 investigation without further delay. The Council has now agreed to do this. I am satisfied that this resolves Mr X’s current complaint about the Council’s complaint process.
- I find fault in the Council’s current approach to complaint handling. However, the Council now agrees to arrange a Stage 2 investigation and therefore this complaint has been resolved. I am therefore closing the complaint.
Parts of the complaint that I did not investigate
- I am not investigating Mr X’s substantive complaint about services to his son. If he remains dissatisfied with the final outcome of the Council’s investigation, he can make a complaint to the Ombudsman.
Investigator's decision on behalf of the Ombudsman