Summary: Mrs F complained the Council failed to meet her granddaughter’s needs when it took her into care. The Council has not considered the complaint at stage two of the statutory children’s complaints procedure and there are no grounds for the Ombudsman to consider the complaint early. The Council has agreed to conduct a stage two investigation.

The complaint

1. Mrs F complains the Council:
1. failed to complete a care plan or discharge plan for her granddaughter, M, when she left hospital in early 2017
2. placed M in a children’s home that did not meet her needs and failed to act in her best interests
3. delayed dealing with her complaint
2. Mrs F says this caused them significant stress and worry about M.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I spoke to Mrs F about her complaint and considered the Council’s response to my enquiries and:
• The Children Act Representations Procedure (England) Regulations 2006 (“the Regulations”)
• Getting the best from complaints, Statutory guidance for local authorities on children’s services complaints procedures 2006 (“the Guidance”)
7. I gave Mrs F and the Council an opportunity to comment on my draft decision.

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What I found

The statutory children’s complaints process

8. The law sets out a three stage procedure for councils to follow when looking at complaints about children's social care services. The Regulations and Guidance lists those eligible to complain under the procedure. This includes special guardians, former guardians, and “such other person(s) as the local authority consider has sufficient interest in the child or young person's welfare to warrant his representations being considered by them.”
9. The first stage of the procedure is local resolution. More complex complaints do not have to be considered at this stage but, where they are, councils have 20 working days to respond.
10. The Regulations say that, if a complainant is not happy with a council’s stage 1 response, 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.
11. At stage 2 of the 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 by a panel.
12. If, after receiving the Council's final response, the complainant remains dissatisfied, they can submit a complaint to the Ombudsman. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
13. The Ombudsman would normally expect the full complaints process to be followed before considering a complaint about it. If both parties agree and the complaint has been upheld, the Ombudsman can deal with the complaint without the third stage. The Guidance also says that someone can complain to the Ombudsman at any time. The Ombudsman might exercise discretion to investigate in certain but rare circumstances.
14. In March 2015, the Ombudsman issued a Focus Report about children's social care complaints. He found that a common problem was a refusal by councils to allow complainants to go through all stages of the statutory complaints procedure. In this report, it was clarified that the Ombudsman would be unlikely to accept complaints brought early except if the early referral criteria had been met.

What happened

15. Mrs F is the grandmother of M, who has severe physical disabilities and special educational needs. Mr and Mrs F had Special Guardianship for M and had cared for her for ten years since shortly after her birth. M was on a Child Protection Plan.
16. M was admitted to hospital in January 2017. There were concerns about the support M would require on her return home. The hospital said there was a need for training in relation to hoisting, nutrition and continence. A decision was made to apply to court for an Interim Care Order, which was granted on 16 February 2017. M was subsequently discharged from hospital into local authority care and placed at the children’s home.
17. In May 2018, following the completion of legal proceedings in relation to M’s care, Mrs F complained to the Council that:
• It had failed to complete a care plan and facilitate M’s discharge from hospital
• It had placed M in a children’s home that could not meet her complex needs and was unsuitable as it was out of county and for children with different needs
• M had lost weight and suffered ill health whilst in the Council’s care
• It had failed to act in M's interest or meet its legal duties
• M had had no access to respite care
18. The Council responded to Mrs F’s complaint in October 2018. Its letter is headed “Children’s Statutory Complaint Stage 1”. It apologised for the delay. The Council did not uphold Mrs F’s complaint. It said:
• There was no evidence the Council had failed to complete a care plan; M had been discharged from hospital into local authority care following a court order.
• The ability of the children’s home to meet M's needs had been carefully considered prior to her placement. Whilst it was not intended as a long-term plan, at M’s Initial Child in Care review it was agreed she should remain in the children’s home until foster carers were found. There was no evidence travelling to school was having a negative impact on M.
• M's weight had stabilised, was being monitored and she was having a high calorie diet; the appropriate medical protocols had been followed.
• There was no evidence the Council had not met its legal duties in relation to M.
• There had been ongoing involvement with the respite care provider, and M had attended occasionally.
19. Mrs F was dissatisfied and approached the Ombudsman. It was too soon for us to consider her complaint. We wrote to the Council in November 2018 asking it to complete the complaints procedure.
20. Mrs F wrote to the Council on 17 December 2018. She asked for her complaint to be escalated to the next stage. The Council says it received this letter on 25 January 2019. It responded on 8 March 2019. Its letter is headed “Corporate Complaint escalation request”. The Council said it was unable to add anything further to its previous response. Mrs F complained to the Ombudsman.

My findings

21. As the Council had not dealt with Mrs F’s complaint under the statutory children’s complaints process, and as Mrs F no longer has parental responsibility or special guardianship for M, I asked the Council if it had considered whether Mrs F was a person with “sufficient interest” in M’s welfare.
22. In response the Council said it had done so for an earlier complaint from Mrs F, which was about matters leading up to the court hearing and M’s welfare. The Council had decided to deal with this current complaint under its corporate procedure because the Council now held parental responsibility for M, shared with her parents, and because it would be unable to share information about M with Mr and Mrs F.
23. The Council accepted there were elements of the complaint which could have been handled under the statutory procedure as Mr and Mrs F appeared to be acting in M’s best interests. However, the Council did not consider it could add anything further to the responses it had already provided. The Council said under the statutory procedure, it would have reviewed any stage 2 escalation request to see if there would be any added value by progressing the complaint.
24. The Council had recently restructured its complaints handling team and recruited new managers and staff. It is reviewing complaints on receipt to ensure they are handled under the most appropriate procedure.
25. I have carefully considered the Council's reasons for dealing with the complaint under its corporate procedure. However, I am satisfied the matter complained of should be considered through the statutory children’s complaints process.
26. Whilst Mr and Mrs F do not have parental responsibility, they are former guardians who cared for M for ten years. They have previously been deemed persons with a sufficient interest in M’s welfare and I can see no reason why they should not be again. I therefore find it was fault for the Council not to deal with the complaint under the statutory process.
27. Following the stage 1 response, Mrs F remained dissatisfied and sought escalation. The Council carried out a review under stage 2 of its corporate complaints’ procedure. The Regulations are clear that if a complainant asks for escalation, the Council must progress the complaint to stage 2.
28. I am not persuaded this complaint meets the criteria of an early referral to the Ombudsman as there has not yet been a stage 2 investigation. I therefore consider the Council is at fault for not considering this complaint at stage 2 of the statutory complaints process.
29. This has caused Mrs F an injustice as her complaint has not been properly considered. A second stage investigator able to carry out interviews and view files on site is better placed than the Ombudsman to deal with matters now.
30. If Mrs F is still dissatisfied after the stage 2 investigation and both parties agree, she can bring these matters back to the Ombudsman. Alternatively, if either party requires the third panel stage and Mrs F is still dissatisfied after that, she can bring these matters back to us then. In either case, she should so within 12 months of the date of our final decision unless there is a good reason why she cannot do this.

Agreed action

31. Within one month of my final decision the Council has agreed to make the necessary arrangements to begin a stage 2 investigation and contact Mrs F to notify her of the arrangements and the process that will be followed.

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Final decision

32. There was fault by the Council in not dealing with this complaint under the statutory children’s complaints process. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman