The Ombudsman's final decision:
Summary: Miss X complains the Council failed to consider safeguarding concerns she raised in relation to her grandchildren. The Council investigated her complaint at Stage 1 of the statutory Children Act complaints procedure but it refused Miss X’s request to proceed to Stage 2 of the procedure, an independent investigation. This is fault. The Council has agreed to arrange a Stage 2 investigation without further delay.
- The complainant, Miss X, complains the Council has not responded appropriately to safeguarding concerns she raised about her grandchildren.
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)
How I considered this complaint
- I considered Miss X’s complaint and the information she provided.
- I considered the Council’s stage 1 and stage 2 responses it sent to Miss X.
- Miss X and the Council were given the opportunity to comment on a draft of this decision. I considered Miss X’s comments. The Council advised it had no comments to make
- 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 our final decision with Ofsted.
What I found
- The Children Act 1989 and the Representations Procedure (England) Regulations 2006 (the Regulations) 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 (the Guidance) 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.
- Miss X wrote to the Council on 6 January 2019 with safeguarding concerns she had about the risk her daughter’s partner, Mr Y, posed to her grandchildren, B and G. Miss X says that both children had previously been subject to an interim care order and she was their temporary foster carer.
- Miss X’s granddaughter, G, used to spend three nights a week with Miss X but this stopped in January 2019. Miss X says this was due to Mr Y’s controlling behaviour which caused emotional turmoil to G. Miss X said she discovered in December 2018 that G had witnessed her mother, Miss D and Mr Y taking drugs, drinking alcohol and she had also witnessed domestic violence. Miss X says this affected G’s emotional and physical health. She says B is still a baby so she is unsure about the effect Mr Y and Miss D’s behaviour is having on him.
- The Council conducted an assessment of the family and it decided to take no further action.
- Miss X says there was a further incident of domestic violence between Miss D and Mr Y in December 2018 so Miss D and the children came to live with her.
- Miss X did not feel her concerns were taken seriously by the Council so she submitted a complaint on 21 January 2019.
- The Council carried out a stage 1 investigation of Miss X’s complaints and sent its stage 1 response to her on 11 April 2019. The Council did not uphold Miss X’s complaint because it had completed an assessment of the family and addressed all of the concerns she had. The assessment was completed in conjunction with the family and professionals working with the family.
- Miss X requested a stage 2 investigation into her complaint. The Council asked Miss X to provide reasons for her request. Miss X said she was unhappy the Council did not discuss the concerns with her as part of the assessment and she wanted to know why. Miss X said the Council’s decision to take no further action was based on the ‘perpetrators’ evidence and it failed to consider the evidence she had. Miss X also said B had suffered an injury due to Mr Y’s temper which resulted in the interim care order being issued.
- The Council wrote to Miss X on 1 May 2019 and said it was prevented from considering her complaint at stage 2 because of the matter of confidentiality and she does not have parental responsibility for the children. It said a stage 2 investigation would need to consider information that she was not entitled to see.
- The Council assured Miss X her concerns had been forwarded to the relevant officer.
- The Council said Miss X could contact the Ombudsman if she remained dissatisfied with the decision.
- At stage 1, complaints should be considered within ten days. The Council took more than 11 weeks to send its Stage 1 response to Miss X. This is fault.
- 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 Miss X did not have parental responsibility for the children and for reasons of confidentiality. The Guidance does not require complainants to have parental responsibility and the Council can investigate Miss X’s complaint at stage 2 without providing her with third party information.
- The Guidance would have allowed the Council to refuse to consider the complaint under the Children Act Procedure. I do not criticise the Council for using the procedure as the issues raised were potentially serious. However, the Guidance provides that once a complaint has entered Stage 1, the local authority is obliged to ensure that the complaint proceeds to Stages 2 and 3 of the procedure, if that is the complainant’s wish. Therefore, Miss X is entitled to an independent investigation under stage 2 of the procedure.
- 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 Miss X.
- The Council has agreed that within four weeks of my final decision, it will start a Stage 2 investigation without further delay.
- There is fault in the Council’s current approach to complaint handling. It has agreed to our recommendation to remedy the fault. Therefore, I have completed my investigation and closed this case.
Investigator's decision on behalf of the Ombudsman