Summary: Mr X complains about the Council’s failure to provide adequate social work support to his son. The Ombudsman has found the Council to be at fault because it did not properly investigate this complaint under the statutory children’s services complaints procedure. This has caused Mr X some uncertainty about whether the outcome may have been different. To remedy the injustice caused, the Council has agreed to apologise, make a time and trouble payment to Mr X and consider the complaint under the correct procedure without delay. It should also review its complaint handling processes.

The complaint

1. The complainant, whom I shall call Mr X, complained about the Council’s failure to provide support to his adopted son when he told social workers about concerning behaviour. The Council dealt with this complaint under its corporate complaints procedure.

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What I have investigated

2. I have investigated whether the Council has properly considered Mr X’s complaint. I give my reason for not investigating the substantive matter at the end of this statement.

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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 have spoken to Mr X about his complaint and considered the Council’s responses to his complaint and a preliminary enquiry from the Ombudsman.
7. I sent a draft version of this decision to both parties and invited comments. I have taken comments received into consideration.

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What I found

Children’s statutory complaints procedure

8. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. This is set out in the Children Act 1989 Representations Procedure (England) Regulations 2006 and accompanying guidance “Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others” (“the Guidance”).
9. There are three stages to this procedure:

• Stage one – Local resolution.
• Stage two – Investigation by an investigating officer and overseen by an independent person. The investigating officer should not be in direct line management of the service or person being complained about. The independent person should not be an employee of the council.
• Stage three – Review panel. This should be made up of three independent people.

10. The Guidance sets out what may be complained about. It includes:

• an unwelcome or disputed decision;
• concern about the quality or appropriateness of a service;
• delay in decision making or provision of services;
• delivery or non-delivery of services including complaints procedures;
• attitude or behaviour of staff;
• assessment, care management and review;
• adoption services (this includes ongoing therapeutic support for adopted children).

11. The Guidance sets out who may complain. This includes a parent of an adopted child. Complaints can be made on behalf of a child or relating to a child.

The Council’s policy for dealing with complaints about Children’s Social Services

12. This states the Council will investigate complaints about the following matters under the statutory procedure:

• Child protection
• Adoption (in certain limited circumstances)

13. It says the Council’s corporate procedure would be used for complaints about education, childcare or youth services.

Ombudsman guidance

14. In March 2015, this office issued a focus report on lessons learned from children’s service complaints entitled, “Are we getting the best from children’s social care complaints?” This report states that “Our view is that, as a statutory procedure, the Children Act complaints process should be adhered to...councils must make sure they administer the procedure properly and effectively, taking into account the extensive guidance available”

Achieving for Children

15. Achieving for Children (AfC) is a social enterprise company set up in 2014 to provide certain children’s service on behalf of this and other councils. The Council retains legal responsibility for provision of these services.

What happened

16. Mr X is the adoptive parent of Child D and Child E. A social worker, employed by AfC, was supporting the family due to Child E’s challenging behavior. In April 2018, Mr X also became concerned about Child D secretly taking a knife from the kitchen and keeping it in his bedroom.
17. Mr X was worried about the potential for Child D to self-harm. He asked the social worker to provide support to Child D during a home visit in April 2018, but nothing happened as a result. Child D continued to demonstrate concerning behaviours, including incidents of self-harm at school. While AfC did provide some support to Child D in wider context, none was targeted around the risk of self-harm and reasons for it.
18. The situation came to a head in December 2019, when Child D was found with the knife at school. The police were involved, and Child D was given a conditional caution.
19. In March 2020, Mr X complained to the Council. He said the Council had failed to respond to his concerns about Child D in April 2018. Because of this, his self-harming had escalated, leading to the incident with the knife at school which had left him with a criminal record.
20. His complaint was not upheld at stage one. Mr X complained again.
21. The stage two investigation as carried out by an Associate Director of AfC. A complaints officer from the Council was the independent person who “worked alongside the investigating officer and has reviewed and agreed her conclusions.”
22. In June 2020, Mr X’s complaint was partially upheld. The Council accepted there was a failure to provide targeted support regarding self-harm from the time it says it became aware of the problem in May/June 2019. It said there was no evidence to show AfC was aware of the problem before that.
23. Mr X remained dissatisfied. He was particularly concerned that his conversations with social workers in 2018 had not been recorded. This meant the Council did not accept it had been aware of the problem and failed to act. Mr X complained to the Ombudsman.
24. The Ombudsman asked the Council for a copy of the stage two investigation report and reasons why Mr X was not offered a stage three review panel. In response, the Council said, “this was dealt with as a complaint made by adults (the parents) about their view on the service, rather than a child's complaint about the service. There are therefore no investigators reports and Mr X was not offered the right to request a Stage 3 [Review Panel] as it was not handled under the statutory complaints procedure”.
25. Mr X has told the Ombudsman he has another ongoing, related complaint about AfC that has also been considered under the corporate complaints procedure.

Analysis

26. A council can only vary from the statutory children’s complaints procedure in exceptional circumstances. A key principle of the procedure is its independence.
27. This complaint should have been processed under the statutory procedure. The Council’s rationale for not doing so is incorrect. The Guidance sets out who may complain. It is not restricted to children. Parents of adopted children may complain. Any other parent can complain about a delay in the provision of services, if they are acting on behalf of a child or because the matter related to a child. There is no evidence this was considered by the Council.
28. The Council took an overly restrictive approach to application of the statutory complaints procedure and is fault. In response to my draft decision, the Council has explained that the complaint was initially registered under the statutory procedure, it was later incorrectly dealt with under the corporate procedure. This is supported by evidence I have seen.
29. I have considered whether the Ombudsman should investigate the substantive complaint instead of the Council, given the additional time this will take. However, I have concluded the Council should conduct the stage two investigation as per its statutory duty. I say this because from the evidence I have seen so far, the investigation:
1. was not sufficiently independent – both investigators were managers of the service being complained about. The stage two independent person was a complaint handling officer employed by the Council.
2. was limited in its scope – its stage one response did not consider the actions of workers from a different team. It is unclear whether the stage two investigation properly considered the actions of all officers involved.
3. did not properly consider the personal injustice to child D and consider making an appropriate remedy for this.
4. appears contradictory. The stage one complaint response accepted the records from April 2018 were incomplete. Yet the stage two investigation seems to disregard this and relies on lack of evidence as a reason not to uphold part of the complaint relating to these earlier events. Mr X has brought to my attention other examples of poor record keeping. The investigation should have properly considered how concerns about record keeping could have affected the outcome of the complaint.

Agreed action

30. The Council has agreed to take the following action within four weeks of my final decision:
1. Arrange a stage two investigation immediately into Mr X’s complaint under the statutory children’s complaints procedure;
2. Apologise to Mr X for failing to respond to his complaint under the statutory complaints procedure and therefore failing to ensure his complaint was properly considered and for the uncertainty this has caused him;
3. Pay Mr X £150 for the avoidable delay, time and trouble caused by the missed opportunity to seek a stage 2 investigation into his complaint;
4. Consider whether Mr X’s later complaint (about the actions of AfC’s Youth Justice Team) should also be reconsidered under the statutory procedure. It should write to Mr X giving reasons for its decision.
31. Issue a guidance note to staff who deal with children and complaints about the requirements of the statutory guidance.

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Final decision

32. The Council was at fault because it did not consider Mr X’s complaint under the correct statutory procedure.

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Parts of the complaint that I did not investigate

33. I have not investigated the substantive matters. This is because the Council has not yet properly considered them. If Mr X remains dissatisfied when the Council has completed the complaints process, he can bring these matters back to the Ombudsman. He should do so within 12 months of the Council’s final response, unless there is a good reason that prevents him.

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Investigator's decision on behalf of the Ombudsman