Summary: The Council’s decision not to investigate Mr X’s late complaint about children’s services was not affected by fault.

The complaint

1. Mr X, a young adult, complains about the Council’s decision not to investigate his complaint about children’s services’ actions when he was a child. The Council refused to investigate, as his complaint was late. However, Mr X says this decision is unfair, and the Council has not properly considered the reasons his complaint was late. This also means he cannot pursue his complaint through the Council’s complaint procedure.
2. Mr X’s advocate Ms Y, complained on his behalf to the Ombudsman about the decision.

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What I have investigated

3. I have investigated the Council’s handling of its decision not to accept Mr X’s complaint and consider it through its complaints procedure.

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The Ombudsman’s role and powers

4. 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)
5. 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).
6. 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).

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How I considered this complaint

7. I have discussed the complaint with Ms Y and considered the complaint and the copy correspondence provided by the complainant. I made enquiries of the Council and considered the comments and documents it provided. Mr X, his advocate and the Council had an opportunity to comment on my draft decision.

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What I found

8. Mr X complained in 2020 with Ms Y’s assistance. He said that between the ages of 16 and 18 when he was in care, or leaving care, the Council:
• Did not support him, leading to Mr X and his sister being taken into care.
• Failed to ensure Mr X received the correct medication which meant he was unwell and lost weight.
• Did not provide the placement agreed in court.
• Failed to pass on a letter to his mother.
• Failed to intervene when he was cared for by his abusive half brother.
• Rushed Mr X’s move from his foster placement resulting in him losing clothes.
• The Council‘s Leaving Care team left Mr X homeless for 2-3 weeks.
9. Ms Y recognised that Mr X’s complaint was late, as it was not within the 12 month limit in the Children’s Services statutory complaints procedure. She said that Mr X did not complain at the time because it was only now that he was able to speak about the events, some of which were traumatic. Ms Y said Mr X did not complain earlier because he had experienced a period of bad mental health and in addition his mother had been seriously ill.
10. Ms Y referred to the Department for Education and Skills guidance, “Getting the Best from Complaints” (“the Guidance”) which covers the Children Act 1989 complaints procedure for children and young people. This states that Local authorities may wish to consider complaints about historic events “if it would be unreasonable to expect the complainant to have made the complaint earlier. For example, where the child was not able to make the complaint or did not feel confident in bringing it forward in the year time limit.” It also states that possible grounds for accepting a complaint made after one year include “genuine issues of vulnerability.”
11. The Council responded to Mr X but said that it would not consider his complaint through the children and young people complaints procedure. It said complaints should be made within 12 months to ensure an effective and efficient investigation could take place. The Guidance states that Local Authorities do not need to consider complaints made more than one year after the grounds to make the representation arose. This was in part because the passage of time meant it was more difficult for people to accurately recall matters. The Council said that some of those involved were no longer its employees. This meant it would be difficult to conduct a fair and accurate investigation into matters which happened several years ago. In addition, it noted Mr X had an advocate in 2015 but the Council was not aware that he raised any complaints at that time.
12. While the Council said it would not investigate the issues Mr X raised as formal complaints, it gave Mr X some information from its records, responding to the points raised. It said it did not find evidence that it did not make every effort to provide support and assistance. The Council also said it noted Mr X had asked for copies of its records. It said it would provide these so that Mr X could look through them with his advocate.
13. In Ms Y’s complaint to the Ombudsman, she said Mr X felt the Council had not taken his concerns seriously, particularly those about the abuse he experienced. Ms Y said:
• the Council had effectively answered the complaint because it had provided details in its response to the points raised and had defended itself. The Council’s response was detailed and had shown that it had sufficient information to investigate the complaint. But Mr X could not challenge this through the complaints procedure.
• The Council had not considered Mr X’s mental health condition as the reason why he did not make a complaint earlier. He had recently been referred for treatment and had reported the abuse to the Police. The advocate stated the Council should consider his complaint as a reasonable adjustment.
• While the Council had referred to Mr X having an advocate, he was a child at the time and was focussed on resolving the issues. There were also court orders and other issues going on at the time.

Analysis

14. In its response to my enquiries the Council stated that it had considered matters properly in accordance with the Guidance. This included consulting its files as shown by its detailed response. It noted Ms Y’s grounds in her letter of complaint. However, it stated it had not fettered its discretion regarding the time limit, but had:
• Considered whether it could effectively and efficiently investigate the complaint
• Decided it was not reasonable to investigate in view of the fact that seven years had elapsed, several officers were no longer employed, or if still employed, would not in any case recall conversations or actions from that time.
• Considered its discretion to investigate according to Guidance where there were grounds of genuine vulnerability. But having considered Mr X’s complaint via the advocate and the grounds raised it did not agree it should investigate.
• Considered the advocate’s point that Mr X was a child at the time the matters arose, but noted Mr X had an advocate from the same organisation when he was a child. The Council’s view was that the advocate was aware of the time limit for complaints. It also referred to an email to Mr X in 2015 advising him to make his complaint via the advocate or to contact the Council directly. However, he had not done so.
• Considered contemporaneous notes regarding Mr X’s comments that he did not want to make a complaint, but had only done so to placate his mother. The Council had decided Mrs X was a suitable representative. However, it had advised Mr X how he might make a complaint himself or with the help of an advocate, but Mr X had not done so. In the Council’s opinion this supported its view that Mr X did not wish to make a complaint.
15. Having considered the complaint and the Council’s responses I do not find there is fault in the Council’s decision making. Therefore, as I explain in paragraph 4, I cannot question whether the decision is right or wrong.
16. The Council has apparently considered relevant factors including Ms Y’s representations, contemporaneous evidence and the Guidance before coming to a decision that it should not investigate the complaint. While I can see the Council provided a response to some of the issues raised, I do not see there is fault in considering background information and taking the decision not to accept a formal complaint. The Council took account of contemporaneous advice it gave Mr X about making a complaint himself and the availability of an advocate to assist him.
17. Mr X also complained that the Council had not provided copies of his records as it had promised. It appears that Mr X had received some records previously. As I explain in paragraph 6, we normally expect the complainant to refer these matters to the Information Commissioner’s Office. I do not consider there are good reasons for the Ombudsman to investigate this because the ICO is best placed to consider complaints regarding non-disclosure of personal data.

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Final decision

18. I have not found fault by the Council. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman