Summary: Ms X complained on behalf of her disabled child, A. Ms X complained the Council had failed, since 2005 to provide adequate social care for A. The Council was at fault because it failed to consider the complaint under the statutory children’s complaints procedure. The Council agreed to complete a stage 2 investigation of Ms X’s complaints.

The complaint

1. Ms X complained on behalf of her disabled child, A. Ms X complained the Council had failed to provide adequate social care for A since 2005. Ms X said the Council had also failed to maintain A’s Education, Health and Care Plan provision. Ms X said the Council had failed to meet A’s needs which has caused distress, frustration and uncertainty.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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 this decision with Ofsted.

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How I considered this complaint

5. I spoke to Ms X about her complaint.
6. I considered the Council’s response to my enquiries.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered the comments before I made my final decision.

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What I found

Statutory Complaints Procedure

8. There is a formal procedure, set out in law, which the Council must follow to investigate certain types of complaint. It involves three stages:
• Local resolution by the Council (Stage 1);
• an investigation by an investigator who will prepare a detailed report and findings (Stage 2). The Council then issues an adjudication letter which sets out its response to the findings; and, if the person making the complaint asks
• an independent panel to consider their representations (Stage 3).
9. Regulations set out the timescales for the procedure. The Council should provide a response at Stage 1 within 10 working days and at Stage 2 within 25 working days (or exceptionally within 65 working days). The Council should call a review panel at Stage 3 within 30 working days.
10. When the Council has investigated a complaint under the Children Act complaints procedure, the Ombudsman would not normally re-investigate it. We may consider whether a council has properly considered the findings and recommendations of the investigator and review panel, and any remedy the Council offers.

What happened

11. In August 2018, Ms X complained to the Council that since 2005,it had failed to:
• register A as a child in need;
• carry out appropriate needs assessments;
• provide adequate social care for A;
• maintain A’s Education, Health and Care Plan (EHCP) provision; and
• assess A’s needs within statutory timescales as they transitioned to adulthood.
12. The Council responded to Ms X in October 2018 through its corporate complaints procedure and said it would not investigate matters more than 12 months old. In its response to Ms X, it referred to events from 2005 onwards and said A was assessed in 2005 but the Council considered A’s needs were best supported by a review from Occupational Health. The Council said it held no records of any other referrals which asked it to assess A’s needs.
13. Ms X was unhappy with the Council’s response. She said the Council had not fully understood her complaint. Ms X said the Council should have registered A as a child in need and should have completed regular assessments of their need. Ms X said the Council had failed A since 2005 so it should investigate events prior to January 2018. The Council responded to Ms X and reiterated it would not investigate events which occurred before January 2018.
14. Ms X remained unhappy and complained to the Ombudsman.

My findings

15. Ms X complained about multiple services provided by the Council. The Council said it did not deal with the complaint under the statutory procedure because Ms X’s complaint was broader than just social care and covered a longer timeframe than it would usually consider. However, her substantive complaint was about the Council’s failure to provide adequate social care for A. A was a disabled child, and therefore a child in need. The law is clear that complaints such as this should be dealt with through the statutory procedure. The statutory procedure has extra safeguards which were not afforded to Ms X. In particular, the Council would have had to appoint an investigator at Stage 2 who would have decided which aspects of the complaint were in or out of time.
16. The Council failed to consider Ms X’s complaint under the statutory procedure which meant Ms X’s complaints were not independently investigated at Stage 2. That was fault. It meant the Council did not handle Ms X’s complaint correctly.
17. The Council has agreed to investigate Ms X’s concerns through the statutory procedure at Stage 2 and has agreed to appoint an investigator to do so. It remains open for Ms X to return to the Ombudsman at a later date if she is unhappy with the decisions taken by the Council or the final result.

Agreed action

18. The Council agreed to start a Stage 2 investigation into Ms X’s complaints within one month of the final decision.

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Final decision

19. I have completed my investigation. The Council was at fault.

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Parts of the complaint that I did not investigate

20. I did not investigate Ms X’s complaints about the Council’s failure to provide social care for A, or her complaints about A’s EHCP provision. That is because the Council agreed to consider the complaints under the statutory complaints procedure first. It is open for Ms X to bring her complaint back to the Ombudsman if she is not satisfied with the Council’s response.

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Investigator's decision on behalf of the Ombudsman