Summary: Mr and Mrs X complain about the adequacy of the Council’s handling of their complaint under the statutory children’s complaints’ procedure. Mr and Mrs X are unhappy with the stage 2 investigation and said the Council have refused to escalate the complaint to a stage 3 review panel. The Council was it fault. Its decision not to escalate the complaint to a stage 3 review panel was not in line with the statutory guidance. The Council agreed to hold a stage 3 panel within one month of the final decision and pay Mr and Mrs X a total of £350 to recognise the delays, distress, frustration and time and trouble caused by its faults.

The complaint

1. Mr and Mrs X complain about the Council’s handling of their complaint under the statutory children’s complaints procedure. Mr and Mrs X said the Council have refused to escalate the complaint to a stage 3 review panel. They said the Council’s response and the significant delays in dealing with matter have caused them distress, frustration and time and trouble.

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What I have investigated

2. I have investigated how the Council dealt with Mr and Mrs X’s complaint in line with the statutory children’s complaints procedure.

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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 X about her complaint.
7. I considered the Council’s stage 2 investigation report and its response to Mr and Mrs X’s request to escalate the complaint to stage three.
8. I considered the statutory guidance about children’s complaints titled “Getting the best from complaints 2006
9. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. Neither the Council or Mr and Mrs X made any specific comments for me to consider.

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What I found

Statutory Complaints Procedure

10. 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 requests it;
• an independent panel to consider their representations (Stage 3).
11. 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.
12. 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.

Stage 3 Review Panels

13. The statutory guidance states that where stage 2 of the complaints procedure has been concluded and the complainant is still dissatisfied, they will be eligible to request further consideration of the complaint by a review panel. The purpose of the review panel is to consider the complaint and where possible work towards a resolution. The panel will also;
• listen to all parties;
• consider the adequacy of the stage 2 investigation;
• obtain further information and advice that may help resolve the complaint to all parties’ satisfaction;
• focus on achieving resolution for the complainant by addressing their clearly defined complaints and desired outcomes;
• reach findings on each of the complaints being reviewed;
• recommend any service improvements for action by the authority.
14. Annexe 3 of the guidance refers to an early referral to the Ombudsman. It says a number of important safeguards must be in place before proceeding with this option. It says stage 2 must have delivered;
• a very robust report;
• an outcome where all complaints have been upheld;
15. The guidance says the Ombudsman will apply a test of reasonableness to any early referral decision. If he decides that early referral was incorrect, he may propose the complaint is considered by the council at a stage 3 review panel in the normal manner.

What happened

Background

16. In October 2017 Mr and Mrs X complained to the Council about their child’s social worker. Mr and Mrs X complained the Council had failed to act in their child’s best interests after they were abused by a family member and had gone through unnecessary child protection proceedings. Mrs and Mrs X approached the Ombudsman in November 2017 because the Council had failed to respond to their complaint.
17. The Ombudsman decided in August 2018 that the Council had taken too long to consider Mr and Mrs X’s complaint and had failed to deal with it in line with the statutory complaints procedure. The Council agreed to immediately deal with Mr and Mrs X’s complaint at stage 2 of the statutory procedure.

Stage 2 investigation

18. The Council completed its stage 2 investigation into Mr and Mrs X’s complaint in May 2019 and wrote to them with its conclusion. Mr and Mrs X had 13 complaints investigated at stage 2 of which 6 were upheld, 3 not upheld and the Council was unable to make a finding on 4. The Council apologised for the errors identified in the investigation and offered Mr and Mrs X £250 to remedy the significant delay and time and trouble caused to them pursuing the matters.
19. Mr and Mrs X were unhappy with the outcome of the stage 2 investigation. They said it had failed to adequately investigate some of the elements of the complaint and had disregarded certain facts. Mr and Mrs X said the stage 2 investigation failed to obtain information from the social worker involved and their manager which meant much of their complaint is unresolved. They said the investigation was contradictory in relation to its consideration of policy and process, and it failed to recommend changes to those processes where it found errors. They therefore asked for a stage 3 review panel to consider the matters.
20. The Council wrote to Mr and Mrs X in August 2019 and refused Mr and Mrs X’s request for a stage 3 review panel to consider the complaints. The Council said it did not feel the review panel could resolve Mr and Mrs X’s outstanding concerns. It said although the stage 2 investigation found errors in policies and process, the investigator did not make any recommendations for any changes. Therefore, the Council did not consider that any further investigation would be productive.
21. The Council said it was apparent during the stage 2 investigation that it could not provide a thorough investigation because it had difficulty accessing evidence. That was because the social worker, their manager and the senior manager were either absent at the time of the investigation or no longer worked for the Council. The Council said the stage 3 review panel would face the same difficulties.
22. Mr and Mrs X remained unhappy with the Council’s response and complained to the Ombudsman.

My findings

23. The statutory guidance at annex 3 lists a number of safeguards which must be in place before the Council should make an early referral to the Ombudsman. This includes that the stage 2 investigation must have delivered a very robust report and an outcome where all complaints have been upheld. Seven elements of Mr and Mrs X’s complaints were either not upheld or the Council was unable to make a finding. By the Council’s own admission, it said the investigation was not thorough due to a lack of access to evidence. Therefore, the test in annexe 3 for early referral was not met.
24. The statutory guidance also states the purpose of the stage 3 panel review is to consider the adequacy of the stage 2 investigation and to focus on achieving resolution for the complainant and to recommend any service improvements for the Council. Mr and Mrs X are unhappy with the outcome of the stage 2 investigation and do not believe the investigation was robust or thorough. They also do not believe the Council properly considered their desired outcomes of policy and procedure changes against the investigation findings. Therefore, Mr and Mrs X’s request for a stage 3 panel review is in line with the statutory guidance.
25. The Council refused to escalate the complaint to stage 3 on the basis that the review panel could not resolve Mr and Mrs X’s outstanding concerns. It also said the panel would face the same difficulties as the investigator with regards to access to evidence. However, it is not for the Council to pre-judge the actions and decisions of an independent panel and doing so was fault.
26. Mr and Mrs X’s request for their complaint to be escalated to a stage 3 review panel is in line with the statutory guidance and it is not appropriate for an early referral to the Ombudsman. The Council’s refusal to comply with Mr and Mrs X’s request is fault, and has caused them further delay, distress, frustration and time and trouble.
27. The statutory guidance states the Council should provide a response at stage 2 within 25 days or exceptionally within 65 working days. The Council agreed to carry out a stage 2 investigation in August 2018 however it did not complete it until May 2019. That was fault and the significant delay caused Mr and Mrs X distress, frustration and time and trouble. The Council has already offered Mr and Mrs X a payment of £250 which is a satisfactory remedy.

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Agreed actions

28. The Council agreed within one month of the final decision the Council to;
• arrange and hold a stage 3 review panel to consider Mr and Mrs X’s complaint in line with the statutory guidance;
• pay Mr and Mrs X £250 already offered to recognise the distress, frustration and time and trouble caused by the delay in completing the stage 2 investigation;
• pay Mr and Mrs X a further £100 to recognise the distress, frustration and time and trouble caused by the faults outlined in paragraphs 25 and 26.

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Final decision

29. I have completed my investigation. The Council was at fault and it agreed to my recommendations to remedy the injustice caused by the fault.

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Parts of the complaint that I did not investigate

30. I have not investigated or considered any of the substantive complaints about the adequacy of the stage 2 investigation. A stage 3 review panel is best placed to deal with it first. Mr and Mrs X retain the right to return to the Ombudsman once the statutory children’s procedure is exhausted. They should do so within a year of our final decision, unless there is a good reason that prevents them.

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Investigator's decision on behalf of the Ombudsman