Summary: Mrs X complains that the Council refuses to deal with her complaint at stage two of its complaints procedure. She says this has caused distress and frustration, and has impacted on her and her daughter’s health. The Ombudsman does not find the Council at fault.

The complaint

1. The complainant, who I refer to as Mrs X, complains on behalf of herself and her daughter, Miss D, that the Council refuses to deal with their complaint at stage two of its complaints procedure.
2. Mrs X says this is part of ongoing failures by the Council, causing her and Miss D distress. She says she has spent a lot of time and trouble trying to complete the complaints procedure, and this has impacted on their health and family time. She also says the lack of communication has been frustrating.

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The Ombudsman’s role and powers

3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

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How I considered this complaint

6. Miss D has given written consent for her mother, Mrs X, to represent this complaint on her behalf. I consider Mrs X is a suitable person to represent this complaint on Miss D’s behalf.
7. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about the complaint.
8. I considered the Ombudsman’s guidance for local authorities, ‘Effective complaint handling for local authorities’, an updated version of which was published in October 2020. This provides guidance for councils and adult social care providers about handling complaints.
9. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.

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What I found

What should have happened

10. The Council has a two-stage complaints procedure. The procedure says that once a person has made a complaint, the Council aims to respond at stage one within 20 working days.
11. If the complainant is dissatisfied with the response, they can ask to escalate the complaint to the second stage of the complaints procedure. The procedure says if the request to progress to stage two is accepted, a senior manager will be asked to reinvestigate.
12. Once the complaints procedure has been exhausted, and if the complainant remains unhappy, they have the right to contact the Ombudsman.
13. The procedure says:

“When we decide that the matter raised by the customer is not a complaint, as we define it, or that it is outside the scope of this policy, or is something the County Council cannot investigate we will advise the customer on the best alternative way to take the matter forward.”

14. The procedure says the Council will not treat certain matters as complaints because there are more appropriate ways to deal with them. This includes a difference of opinion (where the complainant disagrees with a decision the Council made but the Council determines the decision was correct), a difference of legal interpretation or matters subject to legal action, and matters where there are established review or appeal processes.
15. The procedure outlines which types of complaints are outside the scope of the procedure. This includes complaints about freedom of information and data protection. It also includes complaints that are more than 12 months old, saying:

“We will not normally consider complaints made more than one year after the alleged injustice became known to you. This is because such complaints are often too difficult to investigate in a full and fair manner. Such a decision will, however, be made on a case-by-case basis.”

What happened

16. Mrs X’s daughter, Miss D, has healthcare needs. Alongside the NHS/healthcare services, the Council has been involved in providing care and support for Miss D.
17. In November 2019, Mrs X complained to the Council on behalf of Miss D. Mrs X complained about a number of issues including care provision over four years, Miss D’s Education, Health and Care plan, and the Council’s records.
18. In December, the Council said it needed more time to consider Mrs X’s complaint because it was complex and involved several different departments as well as healthcare services. The Council apologised for the delay. It said Mrs X had the right to ask the Council to escalate the complaint the stage two because the timeframe for responding to the complaint had been exceeded.
19. Mrs X said she wanted to allow the Council extra time to respond properly at stage one.
20. The Council sent its stage one response in January 2020. It said healthcare services would respond to the parts of Mrs X’s complaint that were about healthcare. It said Mrs X had the right to appeal Miss D’s Education, Health and Care plan, and said she had exercised this right already by taking her complaint to the Special Educational Needs and Disability (SEND) tribunal in the summer of 2019. The Council said Mrs X had already complained to the Information Commissioner’s Office (ICO) about the Council’s records. The Council also referred to previous complaints Mrs X made to the Ombudsman.
21. At the end of the stage one response, the Council told Mrs X to make contact to discuss what further options might be available to her and Miss D.
22. Mrs X said she was unhappy with the Council’s stage one response and commented on it.
23. In February, the Council sent a follow-up stage one complaint response addressing the additional points Mrs X made. At the end of this response, the Council again told Mrs X to make contact to discuss what further options might be available to her and Miss D.
24. Mrs X told the Council she was unhappy with this response. She commented further on the Council’s response. She asked that the Council escalate her complaint to stage two.
25. In March, the Council sent Mrs X a letter about her request for stage two. It said it would not consider the parts of Mrs X’s complaint that were more than 12 months old. It said Mrs X had opportunities to challenge the provisions set out in the Education, Health and Care plan through the annual review process and also take her complaint to the SEND tribunal.
26. The Council addressed some of Mrs X’s points. It then said it would not investigate Mrs X’s complaint further, and gave its reasons. It said that in 2015 Mrs X applied for Judicial Review about some parts of this complaint. It said Mrs X later withdrew this application after a legal agreement was reached.
27. The Council said Mrs X needed to complain to the NHS about the parts of her complaint about delivery and monitoring of healthcare services. The Council said it had completed all the actions required by the ICO.
28. Mrs X then complained to the Ombudsman.

Analysis

29. Mrs X complains that the Council refuses to deal with her and Miss D’s complaint at stage two of its complaints procedure.
30. The Council tells the Ombudsman it concluded, on balance, that it was not appropriate to escalate Mrs X’s complaint to stage two for the following reasons:
• Mrs X had known about some parts of her complaint for more than 12 months;
• Mrs X had the opportunity to challenge or appeal certain parts of her complaint previously through more appropriate legal channels;
• some parts of the complaint related to Mrs X’s Judicial Review application, which was subsequently settled, and Mrs X could have considered further legal action about this;
• some parts were for NHS/healthcare services;
• some parts had already been considered as part of previous appeals to the SEND tribunal, or through complaints to the Ombudsman or the Information Commissioner’s Office (ICO); and,
• the Council did not feel that further investigation into Mrs X’s complaint would provide a different outcome or additional information, because it had already sent two stage one complaint responses.
31. The Council’s complaints procedure sets out what types of complaint are outside the scope of the procedure. It also sets out what matters will not be treated as complaints because there are more appropriate ways to deal with them. See paragraphs 13 to 15.
32. I find that the Council correctly applied its policy when it told Mrs X it would not consider certain parts of her complaint.
33. The Council’s complaints procedure says it does not have to accept requests to progress complaints to stage two.
34. I have considered the Ombudsman’s guidance for local authorities, ‘Effective complaint handling for local authorities’. This provides guidance for councils and adult social care providers about handling complaints. This guidance says it is for a council to determine how to respond to a complaint properly. It says what matters most is that a council investigates a complaint robustly and considers its findings properly. Once a council is satisfied with its response, and satisfied there is no merit in considering a complaint further, and it has reached its final decision, a council can signpost the complainant to the Ombudsman.
35. I find that this is what happened here.
36. I find that the Council fully and thoroughly investigated the parts of Mrs X’s complaint it should have, in line with its complaints procedure. The Council concluded that there was no merit in further investigating Mrs X’s complaint at stage two. This was a decision the Council was entitled to make, and I find the decision was in line with its procedure.
37. Mrs X says the Council offered to escalate her complaint to stage two in December 2019 but is now refusing to go to stage two. I do not agree. I find that the Council told Mrs X that she had the right to ask the Council to escalate her complaint to stage two, bypassing stage one entirely, because the timeframe to respond at stage one had passed. The Council asked for an extension to the timeframe to send its stage one response.
38. Mrs X agreed to extend the timeframe to allow the Council to respond at stage one. At this time, Mrs X could have exercised her right to ask the Council to escalate her complaint directly to stage two. She chose not to. Ultimately, the Council is under no obligation to investigate complaints at stage two.
39. I find that the Council acted in line with its complaints procedure and in line with Ombudsman guidance. For these reasons, and the reasons given above, I do not find the Council at fault.

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Final decision

40. I have completed my investigation and I do not uphold Miss D’s and Mrs X’s complaint. This is because there is no fault.

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Investigator's decision on behalf of the Ombudsman