Summary: Mr X complains the Council’s offer of a remedy payment on the conclusion of court proceedings does not reflect the costs he incurred or reflect the agreed outcome of an independent investigation into his complaints. We have found no evidence of fault in the way the Council considered these matters so have completed our investigation.

The complaint

1. The complainant whom I shall refer to as Mr X complains about the Council’s offer of a remedy payment on the conclusion of court proceedings regarding contact with his children. Mr X says the Council’s offer does not reflect the costs he has incurred and so does not reflect the agreed outcome of the independent stage 2 investigation into his complaints. Mr X says he has been left with financial losses as a result.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, 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)

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How I considered this complaint

5. I have read the papers submitted by Mr X and spoken to him about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Statutory children’s complaints procedure

7. 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 (IO) and an independent person (IP). The IP 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. If a council has investigated something under this procedure, we would not normally re-investigate it unless we consider that investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

Our guidance on remedy payments

8. Our Guidance on Good Practice: Remedies says our suggested remedies tend to be more of a symbolic payment which acknowledges the distress or difficulties a person has been put through. The remedies are not intended to be punitive and we do not award compensation in the way a court might. For a time and trouble payment (inconvenience) we usually recommend a moderate sum of between £100 to £300. For distress we usually recommend a payment between £100 to £300. But in cases where the distress to a person was severe or prolonged a payment of up to £1000 may be justified.

Background information

9. Mr X and his partner Ms Y’s relationship ended. Ms Y applied to the courts for orders preventing Mr X’s contact with her and the children. Mr X began private law proceedings to seek contact/residence with his children. The Council’s Early Help service became involved as Mr X and Ms Y could not agree on contact arrangements. A social worker from the Early Help service wrote an assessment on the situation which was considered in a court hearing about contact arrangements. The court made an interim order Mr X should have no direct contact with his children based on information provided including the Early Help assessment.
10. Mr X complained to the Council at stage one of its complaint procedure. Mr X’s concerns included not receiving a copy of the assessment before its release to the court, so he had no opportunity to refute its content. Mr X considered the assessment inaccurate and biased towards Ms Y. Mr X complained the court used the assessment to decide his access to the children to his detriment.
11. The Council’s stage one investigation upheld Mr X’s complaints. The Council apologised. It agreed several actions including appointing an Advanced Practitioner to work with the social worker to ensure equity of practice for Mr X and his family.
12. The court ordered the Council to complete a section 7 report to comment on the children’s residence, contact arrangements and other matters. A judge often requires a section 7 report in private proceedings where a court receives an application for an Order under Section 8 of the Children Act 1989. The Advanced Practitioner and social worker wrote the section 7 report recommending contact between Mr X and his children.
13. Mr X complained to the Council at stage two of the complaint procedure. His complaint included concerns the Early Help assessment remained in the public domain and the social worker continuing as the family’s social worker. This was despite Mr X’s request she no longer worked on the case. Mr X complained the Council failed to take the action agreed to address the upheld stage one complaints. Mr X’s asked the Council to remove the Early Help assessment from the court bundles and if necessary, present a new assessment to the court. Mr X also wanted to have all his costs reimbursed, including the solicitors’ fees in pursuing contact with his children.
14. The stage 2 independent investigation upheld Mr X’s complaints. The IO found the Early Help assessment flawed and it should have been removed from all proceedings at an earlier point but was now entangled in court proceedings. The IO found the section 7 report lacked a balanced overview. The investigation recommended the Council should:
• Consider reimbursing Mr X’s costs. It said as Mr X was self-employed ‘pursuing contact with the children through the Council’s processes as well as the courts had resulted in significant costs to Mr X’s business as well as his personal finances. So, Mr X should be recompensed for these costs to the maximum possible level’.
• Apologise for failing to implement the stage one actions.
• Complete an addendum report to the section 7 report for the family court where it fully explained the allegations.
• Inform the family court of the errors in the previous Early Help assessment and seek to have the documents removed from the court bundle.
15. The Council wrote an addendum to the section 7 report based on the stage 2 investigation telling the court not to rely on the Early Help assessment. The Court’s final order granted Ms Y residence of the children and set out contact arrangements for Mr X to see them.
16. In commenting on the draft decision Mr X says the court ordered the Council to complete a new section 7 report and it was not based on the stage 2 investigation telling the court not to rely on the Early help assessment.
17. Mr X sent a financial claim to the Council of £247,760 as his costs.
18. The Council received and considered the findings of the stage 2 investigation. It accepted the findings and considered the recommendations made by the IO. The Council apologised to Mr X for the upheld complaints. It explained it was not a party to the private law proceedings for contact between Mr X and Ms Y and was only involved in an advisory capacity to the courts. It had commissioned an Independent social worker to complete the addendum to the section 7 report to ensure transparency and confidence in the process. It was then for both parties to explore the issue of what documents should be sent to the Social worker at court and any disputes addressed by the judge. The Council said it had no authority to amend the court bundle as it was not a party to the proceedings so had no authority to amend the court bundle.
19. The Council agreed with the analysis of the IO to offer Mr X financial redress. The Council offered Mr X a payment of £5000. This was broken down into £300 a day for each day Mr X was at court after the court ordered the Council to file a section 7 report (13 days), and £1,100 for the distress caused.
20. Mr X accepted the findings and outcomes of the stage 2 investigation but disagreed with the compensation offered by the Council. Mr X considers the IO’s recommendation was not for the Council to compensate him for his time at court but to compensate him for all his legal expenses and loss of earnings. Mr X says his legal costs are at least £92,000 as he appointed a solicitor and barrister to represent him. Mr X says he attended court on 21 occasions and not the 13 referred to by the Council.

The Council’s comments on the compensation offer

21. The Council says Mr X brought the private law proceedings as was his choice, and it was an application to seek contact/residence with his children. In normal circumstances where the Council’s Children’s Social Care Service is asked to submit a section 7 report, the Council does not pay financial compensation to mitigate loss of income for parents attending court.
22. The Council says the offer of £300 a day to Mr X was not to compensate for his ‘costs for attending court’. This because the court did not award costs against the Council either for Mr X’s ‘loss of earnings‘ or his ‘legal costs’. Rather the £300 per day was to acknowledge Mr X’s inconvenience of attending court for an additional 13 days to cover the schedule 7 report. The Council says it has based its offer on our guidance on remedies. Our recommendations for time and trouble or inconvenience are between £100 to £300. The £1100 for any distress caused was based on our recommendations for distress payments with £1000 being suggested for severe distress. The Council says it offer is a sincere expression of its apology.

My assessment

23. Most of Mr X’s concerns in his complaint to the Council are about matters that have been before the courts. As paragraph three explains we cannot consider complaints about matters that have been before the courts. So, I cannot comment on the court proceedings and reports. My consideration of Mr X’s complaint is about the stage 2 investigation into his complaints and I have included information about the court proceedings as context to the independent investigation.
24. Mr X does not complain about the Council’s investigation into his complaint and has accepted the outcome and findings. Having reviewed the stage 2 report, I am satisfied the stage two investigation was robust and considered relevant information. Therefore, even if Mr X raised concerns about the investigation, I consider it appropriate to rely on the findings reached at stage two and I would not reinvestigate the matters. So as paragraph seven explains we then look at how the Council considered the findings and recommendations of the investigation.
25. In this case Mr X is only disputing the Council’s offer of financial compensation. When it receives an independent investigation report the Council must consider the report, findings and recommendation and then adjudicate whether it agrees or not with the findings.
26. The Council adjudicated on the recommendation to pay Mr X financial redress and agreed it should do so. The Council comments the proceedings were private law proceedings brought about by Mr X to ensure he had contact with his children and set out the arrangements. So, the Council was not a party to the legal proceedings and its role was advisory. Because of this I cannot say the Council is responsible for all the court costs Mr X has incurred as these were the result of actions between Mr X and Ms Y over the contact arrangements for their children.
27. The Council’s adjudication for financial redress was to offer a contribution towards Mr X’s inconvenience in attending court following the Council’s involvement in the section 7 report. The Council has explained how it reached its offer of the financial payment to Mr X for £300 a day for each day he went to court after the section 7 report. The Council offered Mr X £1100 for distress. Both payments are at the upper limits of the payments we suggest. I consider the Council’s level of financial redress offered is a merits decision the Council is entitled to make when it adjudicated on the independent investigation. As the Council has explained how it reached its offer and it is broadly in line with our own guidance on remedies to complainants, I do not consider there is fault by the Council in the way it has made its decision on the level of financial redress to offer Mr X.
28. As paragraph eight explains our remedies are symbolic payments, not intended to be punitive and we do not award compensation in the way a court might do. So, if Mr X considers he should receive a larger compensation payment then he needs to seek legal advice and consider making a claim against the Council through the courts.

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Final decision

29. I am completing my investigation. I have found no fault by the Council in the way it made an offer of financial compensation to Mr X as a remedy to his complaints.

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Investigator's decision on behalf of the Ombudsman