Summary: Mr and Mrs B complained the Council failed to tell them of the decision not to assess their children for an Education Health and Care Plan (EHCP) so they could not challenge the decision. They also complained about the Council’s involvement with them under its child protection duties. They consider the Council failed to take account of all relevant information, so the family did not have the support needed and has experienced significant avoidable distress. There was fault in the handling of the complaint which has caused injustice. The Council will apologise and make a payment to Mr and Mrs B.

The complaint

1. I will call the complainants Mr and Mrs B. They complain the Council failed to tell them of the decision not to assess their children for an Education Health and Care Plan (EHCP) so they could not challenge the decision. They also complain about the Council’s involvement with them under its child protection duties. They consider the Council failed to take account of all relevant information, so the family has not had the support it needs and has experienced significant avoidable distress.

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The Ombudsman’s role and powers

2. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
5. 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)
6. 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)

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How I considered this complaint

7. I considered the complaint and documents provided by Mr and Mrs B. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.
8. 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.

Summary of the relevant law and guidance.

A child in need

9. Section 17 of the Children Act 1989 (the Act) imposes a duty on the Council to safeguard and promote the welfare of children within their area who are in need, and promote their upbringing by their families, by providing a range and level of services appropriate to those children’s needs.
10. When a council receives a referral it should assess the child and family quickly, within one day, and decide if it needs to carry out a full assessment or take urgent action. The council has to have a local protocol explaining its assessment procedures. The whole assessment process should take 45 working days. Once completed the Council must decide how to meet the assessed needs.
11. If the family is not happy with the council’s action under section 17, and complains to the council, then the council should reply to that complaint using the Children Act statutory complaints procedure.

Child protection

12. Councils have a duty to make enquiries where a child is considered to be suffering or likely to suffer significant harm. Section 47 of the Act requires the Council to establish the child’s situation and to determine whether protective action is required. Significant harm covers the risk of physical, sexual, emotional abuse or neglect.
13. Referrals may come from the child, agencies involved with children such as health and schools, concerned family members, friends, neighbours or members of the public. When the council accepts a referral, the social worker has the lead professional role. S/he should clarify with the referrer, where possible, what the concerns are and how and why they have arisen.

Initial assessment

14. The council should make initial enquiries of agencies involved with the child and family, for example, health visitor, GP, schools and nurseries. The information gathering at this stage enables the council to assess the nature and level of any harm the child may be facing. The assessment may result in:
• No further action
• A decision to carry out a more detailed assessment of the child’s needs
• A decision to convene a strategy meeting (see below).
15. The child and family must be informed of the action to be taken.
16. The social worker should see the child as soon as possible if the decision is that the referral requires further assessment.

Strategy discussion

17. Where initial assessment shows a child is suffering or is likely to suffer significant harm the council and the police hold a strategy discussion. This may be a telephone discussion. The purpose of a strategy discussion is to decide immediate safeguarding actions and to decide the extent of information giving, especially to parents. A strategy meeting may include other professionals involved with the child.
18. The lead agency (generally the Council, but sometimes Health) must see the child, seeking his or her views and record the outcome. Where the social worker decides emergency action is not needed they will meet with the family and agree plans to safeguard the child’s welfare. The child may be considered a child in need and safeguarding activity stopped.
19. In case where significant harm is still a concern, the strategy discussion:
• Shares information;
• Agrees the conduct and timing of any criminal investigation;
• Decides whether to make enquiries under Section 47 of the Children Act 1989.
20. Where agencies decide to make Section 47 enquiries, the strategy discussion will decide:
• What further information is needed if an assessment has already begun and how to obtain and record it. The assessment should be completed within 45 working days of the referral;
• The immediate and short-term action to safeguard the child, who will do it and in what timescale;
• Whether legal action is needed.

Section 47 enquiries

21. The council has a maximum of 45 days to complete the assessment. Assessors should consider the child’s developmental needs, parenting capacity and family and environmental factors. The child’s interests come first. Where a particular need is identified during the assessment, the council should not wait for the assessment to be completed before commissioning services.
22. Local authority social workers have a statutory duty to lead assessments under section 47. The social worker should:
• Carry out enquiries in a way which minimises distress for the child and family;
• See the child to ascertain their wishes and feelings, assess their understanding of the situation and their relationships and circumstances;
• Interview parents/care/givers and determine the wider social and environmental factors which impact on the family;
• Gather information about the child and family’s history;
• With other professionals, analyse the findings of the assessment and evidence about what interventions are likely to be effective. This is to determine the child’s needs, the level of risk faced, to inform what help should be provided and act to provide that help;
23. If the information gathered under section 47 substantiates concerns and the child may remain at risk of significant harm the social worker will arrange a child protection conference within 15 working days of the strategy meeting.

Fabricated illness or injury

24. Fabricated illness or injury (FII) is normally when parents/carers induce illness in their child or exaggerate a child’s symptoms. The Government produced statutory guidance in 2008.

Children’s statutory complaint process

25. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation).
26. A stage 2 investigation should take no longer than 35 working days unless the complaint is complicated in which case it should take no longer than 65 working days.
27. If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. (Children Act 1989 Representations Procedure (England) Regulations 2006 & “Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others”)

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What I found

Summary of events

28. This complaint concerns two of Mr and Mrs B’s children who at the time of the events complained of were five and six.

EHCP Assessment

29. In January 2019 the Council decided not to carry out an assessment for an EHCP. The Council’s records show it wrote to Mr and Mrs B with the decision. Mr and Mrs B did not receive the letter.

Child protection

30. In early February the school raised serious concerns about the welfare of the children. The Council’s initial assessment was that the threshold for an assessment was met and this was confirmed shortly afterwards at a strategy discussion. The Council decided not to tell the parents because of risk of harm to the children. The Council needed information from the GP and further medical professional input to decide whether there was evidence of FII.
31. In March Mr and Mrs B withdrew their children from school. A few days after Council officers and the police visited Mr and Mrs B’s home to see the children and check on their welfare.
32. In early May there was a further strategy discussion where it was agreed there should be a children and family assessment (CFA) and that should be considered by an initial child protection conference. The Council wrote to Mr and Mrs B explaining what was happening and that a social worker would be in touch to start the assessment.
33. By the end of May the CFA was complete and shared with Mr and Mrs B. They raised over 120 points of disagreement with the CFA. The planned child protection conference did not go ahead. In the middle of June the medical professionals decided there was insufficient evidence of FII and the Council decided to proceed under the child in need procedures.
34. There was further correspondence between Mr and Mrs B and the Council about the support that could be provided to the family under children in need provisions or from the children with disabilities team. This concluded in the middle of August with the Council writing to them. The letter briefly set out the history. It confirmed that the child protection process was concluded. It said that support under ‘children in need’ had been offered

Complaint handling

35. In March Miss B wrote to the Council to complain they had not had notice of the decision not to assess the children for an EHCP. They later complained to the Council about the school and about the action of social workers.
36. Council officers met with Mr and Mrs B and responded to the complaint in mid-April. In May Mr and Mrs B told the Council they wanted to escalate their complaint as they were not satisfied with the response. The Council responded to the complaint but said the S47 process was separate and justified.
37. Mr and Mrs B remained dissatisfied and there was further correspondence with the Council. In June the Council wrote to Mr and Mrs B asking them to confirm that they wanted to proceed to stage 2 of the children’s complaint process. They confirmed they did.
38. There had been mention of possible legal action by Mr and Mrs B and the Council did not immediately appoint an investigating officer and independent person while an officer sought clarification from colleagues. At the end of July a Council officer was appointed as the investigating officer and contacted Mr and Mrs B at the beginning of August.
39. Over the next three months there was correspondence between the investigating officer and Mr and Mrs B about the complaint to be investigated. The complainants wanted their concerns about data protection matters to be included but the Council and investigating officer considered this was not appropriate under the complains procedure. By mid-November the investigating officer said that an independent person had now been appointed and they both wanted to meet with Mr and Mrs B.
40. Mr and Mrs B did not consider a meeting was necessary; they considered their complaints had been clearly set out and the investigation should proceed. In December the complaints manager wrote to Mr and Mrs B. She said that the Council could not offer a resolution to the complaint so it was being withdrawn from the Investigating Officer and Independent Person.
41. We received this complaint from Mrs B in October and in December we referred the complaint back to the Council to consider. This was because the complaint as expressed to us focused on the alleged failure to issue the decision letter on the EHCP assessment request. However there had been an earlier complaint to the Ombudsman from Mr B which was about the children’s services issues but as this complaint was in Mrs B’s name the two were not linked.
42. Mr and Mrs B remained dissatisfied with the response from the Council and with our decision to refer the complaint back to the Council as they considered the Council had had ample opportunity to respond.
43. Following further correspondence from Mrs B in January 2020 it was clear to us there were the other complaints about children’s services and we asked the Council for an update. It said the complaint was still at stage 2 of the process. This was because Mr and Mrs B had continued to raise their concerns with the Council and it had continued with its approach of seeking to agree a statement of complaint.
44. In January the Council’s legal advisor said to the complaints officer that they needed to consider whether there was enough information to identify allegations/specific complaints from the correspondence received.

Analysis

EHCP assessment

45. The key issue here was that Mr and Mrs B did not receive the letter informing them of the Council’s decision not to carry out an assessment. This was important because Mr and Mrs B needed this to be able to challenge the decision. The Council says that an officer of the Council had phoned and left a message for Mrs B on the same day telling her of the decision.
46. When Mr and Mrs B started to complain the issues around this got lost in the children services complaints about the child protection proceedings. It was only when Mr and Mrs B had complained to us and we wrote to the Council in December 2019 that this was picked up. The Council wrote to Mr and Mrs B explaining what had happened. It said they could make a fresh application for an assessment.
47. I cannot say there was fault by the Council in not sending the decision letter to Mr and Mrs B in January. An officer recalls sending the letter and it is not possible to say why it wasn’t received. There is no requirement that the decision should be sent by a guaranteed delivery method.

Child protection

48. There has been protracted and extensive correspondence between the Council and Mr and Mrs B about the Council’s children’s services involvement with the family since March 2019. Mr and Mrs B’s complaints about these matters should have been considered under the statutory children’s complaint process but the Council has not done so. I will refer to that further below. This means that Mr and Mrs B have not had a response to the many points they have raised.
49. I do not consider that it would be reasonable to now ask the Council to complete the statutory process given how long this has been outstanding. But, that said, my role is to consider those matters that could have caused a significant injustice to Mr and Mrs B and their children. This means I will not examine every point they have raised but look at those matters which I consider could have caused them a significant injustice.
50. The Council started the child protection enquiries because of a referral from the school. Mr and Mrs B question the reasons for and the validity of that referral but I cannot consider that as we have no jurisdiction to consider what happens in a school. They also say they believe that it cannot have been submitted in February as they later obtained a copy of it from another source and one of the events referred to happened in March. The Council has provided me with a copy of the referral which is dated early February. Mr and Mrs B have not provided any evidence to support their assertion and I therefore have no grounds to doubt the information the Council has provided.
51. Once the Council had received the detailed referral it had to consider it and decide what action to take. There had been historic involvement with the family where similar concerns had been raised. Given the information before it the Council decided the threshold had been reached to carry out enquiries under S47. It also considered Mr and Mrs B should not be informed initially because of the possibility of risk to the children. I do not consider there was any fault in that decision making by the Council. There were reasons for the decisions made and I am satisfied the Council weighed up the relevant information. I recognise Mr and Mrs B profoundly disagree and consider that the whole basis of the Council’s approach was flawed and based on malicious allegations. But I am satisfied there were sufficient reasons for the Council to start the process to make enquiries.
52. When the Council completed the assessment it was shared with Mr and Mrs B. They raised many concerns and what they considered to be inaccuracies. This resulted in the Council deferring the child protection conference while it considered the points they had raised. This then coincided with the relevant professionals meeting with the Council officers and deciding that the threshold for FII had not been met. The Council then stepped the case down to child in need status. The Council informed Mr and Mrs B of the position in an email a fortnight later. This also explained that support was available through the child in need process but that this was voluntary. There was then correspondence about whether the children met the criteria for support from the team for children with disabilities. In August the Council confirmed its position in correspondence to Mr and Mrs B.
53. It took some time for the decision to be made to end the S47 process – it started in February and was not concluded until June. However I do not consider that was because of delay by the Council. The Council needed to obtain the necessary medical information and there was some delay in that being provided which was not the Council’s fault. The Council was led by the medical professional assessment of whether there were sufficient grounds to evidence FII and once the advice was received that there was not then the Council stopped the process.
54. I do not consider that there was any fault in the Council’s decision that the children did not qualify for support from the children with disabilities team based on the information that was available then. The Council also offered a further assessment and involvement as children in need which Mr and Mrs B declined. So I do not consider there was fault in the support that was offered to Mr and Mrs B at that time.

Complaint handling

55. Overlapping with the above events was correspondence about how the Council was going to deal with Mr and Mrs B’s complaints. In June the Council agreed to consider it under the statutory children’s process. There was then some delay while the Council clarified if Mr and Mrs B were embarking on legal action. When this was resolved the Council appointed a Council officer as the investigating officer. She made contact with Mr and Mrs B at the beginning of August. I do not consider there was any fault over this period. The Council needed to clarify whether there was to be a legal challenge but when that was resolved it appointed an investigating officer. However it did not at the same time appoint an independent person. The Council has commented it was seeking to appoint an independent agency who could carry out investigations on behalf of the council. As that was not complete it considered the investigating officer could spend time looking at the material and case files as well as speaking to the family. Once they were ready to start interviews the independent person could join in the process. The guidance on the complaint process says the independent person should be involved in all aspects of the complaint so it was wrong there was delay in the Council making the appointment.
56. What then happened was a protracted round of correspondence between the Council, the investigating officer and Mr and Mrs B. There were two main issues – the first was that Mr and Mrs B wanted their concerns about data protection and the provision of information included but the Council did not consider this was possible. And the investigating officer wanted to meet with Mr and Mrs B and to agree a statement of complaint with them. I consider the Council was too rigid in its approach here. There was no requirement to meet with Mr and Mrs B if that was not what they wanted. And as far as agreeing a statement of complaint the guidance states that when a complaint is submitted orally then the complaints manager must ensure that the details of the complaint are clear and the complainants’ desired outcomes are recorded in writing and agreed with them. But here there were written submissions from Mr and Mrs B detailing their complaints. The Council may have needed to pull them together to form a manageable list of matters to be investigated but I do not consider it was right to insist on agreeing a statement of complaint.
57. The Ombudsman has recently issued guidance on effective complaint handling for local authorities and this says that where it is not possible to reach agreement on a statement of complaint then the Council should decide on what is at the heart of the complaint and what the complainant wants and proceed on that basis. I recognise that this document post-dates these matters but I consider there was enough information from Mr and Mrs B for the Council to be able to formulate a complaint that could be investigated.
58. The failure to carry out a stage two investigation has meant Mr and Mrs B have been denied the opportunity to have their complaints considered. Although I have considered the main elements the statutory process would have provided a more detailed examination of their concerns.
59. When we asked the Council about the status of the complaint in December 2019 it told us it was still being considered under the statutory process. But the Council had written to Mr and Mrs B saying it could not resolve the complaint so it was being withdrawn from the process. Following our contact and contact from the MP the Council did revisit the complaint but the same issues came up and no progress was made.
60. Because of the nature of the correspondence the Council also lost sight of the complaint about the EHCP assessment. This was fault but I do not consider this caused any significant injustice to Mr and Mrs B. As I say above I do not consider there was fault by the Council so further consideration by the Council sooner would not have altered the position.

Agreed action

61. The Council will apologise to Mr and Mrs B for the failings in its complaint handling. The Council will also make a payment to them of £150 which is to recognise the injustice caused to them by the failing. It should do this within one month of the final decision.
62. The Council should also inform the Ombudsman, within two months of the final decision, of the action it has taken to ensure that the problems in complaint handling which have been identified here will not recur.

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Final decision

63. There was fault in the handling of the complaint which has caused injustice. The Council will apologise and make a payment to Mr and Mrs B.

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Investigator's decision on behalf of the Ombudsman