Summary: there was fault by Kingston Upon Hull City Council in relation to Ms B’s complaint about delay in referring her for suitable support following the completion of legal proceedings in late 2019. There was also avoidable delay in the consideration of her complaint under the statutory children’s complaints procedure. These faults caused Ms B injustice and the Council will take the recommended action to recognise this and ensure that such fault does not occur in future

The complaint

1. The complainant, whom I shall refer to as Ms B, complains about the conduct of Kingston Upon Hull City Council’s children’s services’ team, particularly with reference to it:

1. wrongly refusing to provide her with an advocate from March 2018. Ms B says she needed an advocate due to her own mental health problems and the level of distress she experienced in meetings about her children;
2. failed to investigate concerns that one of her children arrived at a contact session with her with three injuries;
3. wrongly suspended her contact after she reported the incident in b) above; and
4. wrongly placed her children in different foster placements.

2. With Ms B’s consent I also asked the Council to provide information about its handling of Ms B’s complaints to the Council as I was concerned that the evidence Ms B provided with her complaint suggested her complaint may not have been handled properly or in a timely manner under the statutory complaints procedure.

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What I have investigated

3. I have investigated Ms B’s complaints about the council’s refusal to provide her with an advocate from March 2018. The final part of this statement explains why I have not investigated parts b), c) and d) of the complaint.

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The Ombudsman’s role and powers

4. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended) In addition 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)
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. 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 Independent Investigator and an Independent Person (who 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, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
7. 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

8. I discussed the complaint with Ms B and considered the written information she provided. I made written enquiries of the Council and considered all the evidence provided by Ms B and the Council before reaching a draft decision on the complaint.
9. 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.
10. Ms B 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

What should have happened

11. Working Together 2018 (statutory guidance on how organisations should work together to keep children safe) says that social workers should give parents information about local advocacy services and that parents should be told they can bring an advocate to a child protection case conference.
12. Equalities law requires public bodies to make “reasonable adjustments” to ensure that disabled people are not put at a substantial disadvantage when they are provided with services by that body. A mental health vulnerability could require such a reasonable adjustment.
13. A failure to provide an advocate where one is needed to enable a parent with a disability to participate in meetings may mean a council has not properly considered its responsibilities under the Equality Act 2010 and possibly the Human Rights Act 1998.
14. Under the Care Act 2014 there is a duty to provide advocacy to adults who need care and support when the person has substantial difficulty in being fully involved (in processes around assessment and care planning for example) and there is no one appropriate available to support and represent their wishes.
15. Service A provides support to women whose children have been removed from their care and who are at risk of further being removed if they have any more children. Its aim is to stop the cycle of women becoming pregnant and having babies that become the subject of legal proceedings and being removed form their care. It typically provides support for around a year and a half.
16. The Children Act 1989 requires councils to have a formal procedure to deal with complaints about certain elements of its children’s services provision. There are regulations and statutory guidance which govern what can be considered under the complaints procedure and how it should be done. The timescales for this statutory children’s complaints procedure are:
• Stage 1 - 10 working days, with an extension of a further 10 days if necessary to provide a complete response;
• Stage 2 – 25 days from the date the complaint is finalised and a maximum of 65 working days;
• Review panel at stage 3 – should be held within 30 working days of receipt of request for a panel.
17. The statutory guidance confirms that there is nothing in the complaints procedure which precludes either complainant or the Council from suggesting Alternative Dispute Resolution (ADR). Our view is that this is acceptable if the complainant is happy to engage with this but that it should not delay the statutory timescales.
18. The information the Council publishes on its website about the children’s complaints process currently states “If your complaint is not resolved at Stage 1 we will arrange for you to meet with a senior manager. We call this Alternate Dispute Resolution…If your complaint remains unresolved you can request your complaint is considered for formal investigation”. In its comments to me the Council has said that ADR is only offered if there is a realistic prospect of resolution and that complainants are given the option of the ADR or going straight to stage 2 and that a 10 working day time limit is allowed for this.

What happened

Relevant background

19. Kingston Upon Hull City Council initiated care proceedings in relation to some of Ms B’s children. These proceedings concluded in early 2019 and resulted in all of these children being made the subject of care orders and the youngest also the subject of a placement order which has since resulted in him being adopted outside the family. The court awarded a child arrangement order to the father of another of Ms B’s children, Child X, in late 2019 and that child lives with their father. Child X was born after the conclusion of the proceedings relating to Ms B’s older children.
20. Ms B was referred to Service A in February 2020.

Advocacy and support

21. The Council says it has no record of Ms B asking for an advocate to help her around the time of the legal proceedings or before the conclusion of these proceedings.
22. The Council investigated a complaint from Ms B that “she had not received the additional support of an advocate as a vulnerable adult with mental health problems”. She also complained that the Council delayed in referring her to Service A. This complaint was considered under the children’s statutory complaints procedure. The stage 2 investigator stated she was unclear why Ms B felt she should have an advocate as there was no evidence that she had a “substantial difficulty” and did not have a learning disability or an ongoing mental health problem. The Council does accept that Ms B had experienced mental health problems in the past but did not consider she was suffering from such problems during the period of the legal proceedings. The Council points out that Ms B was legally represented in the hearings and had support from her mother. The Council is of the view that Ms B did not have a legal right to an independent advocate.
23. The investigation undertaken by the stage 2 investigator included interviews of the social workers for Ms B’s children and a social work team manager. The stage 2 report notes that these social workers and the team manager had a number of recollections about discussions around an advocate for Ms B when her children first became looked after (before the legal proceedings started) but that Ms B did not want an advocate at that stage. The social worker recalled also that Ms B decided that it was her mother she wanted to support her both in meetings with the Council and when attending court. The social work manager also stated that Ms B did not ask for an advocate during the legal proceedings where she had the support of her mother and was also legally represented. The social worker also told the stage 2 investigator that Ms B did not request an advocate during the legal proceedings.
24. The Council says it offers advocacy services to parents it assesses as having a particular vulnerability or a learning disability and this arrangement was in place at the time of the legal proceedings related to Ms B’s children. The Council used a particular named independent advocacy agency to provide such support but did not engage this facility for Ms B as it did not consider she met the criteria and had no record at the time of her having requested an advocate.
25. The Council contacted Service A about Ms B one month after the conclusion of the legal proceedings in late 2019. The Council says its could not refer Ms B to this service before the completion of the earlier legal proceedings because she was pregnant at that time with child X and this meant she did not meet the qualifying criteria for Service A. It made contact after the end of the second set of legal proceedings. As a result of this initial contact, Service A agreed a referral would be appropriate. Unfortunately it seems there was then some confusion between the social workers for the children as to which of them was to make the referral and this did not happen until Service A chased up the referral in late January and early February 2020. Having received the referral, Service A then contacted Ms B almost immediately in February and started providing the service to her from that time.
26. The stage 2 investigator was of the view that she was unclear why Ms B believed she should have an advocate as she did not have a “substantial difficulty” which is the term used in the Care Act 2014 to suggest that an advocate is necessary. She was of the view that the evidence she had found proved that Ms B was legally represented in the court process, had her mother for support and was reported to be capable of participating in meetings and instructing her solicitor which demonstrated she understood and could participate in the process. The investigator did not therefore uphold the complaint about the failure to provide an advocate. She also found however there was an avoidable delay of three months in making the referral to Service A and so she upheld the complaint on that point. A senior officer in the Council’s children’s services department wrote to Ms B and apologised for the delay in making the referral to Service A and provide Ms B with an action plan which included:
• feeding back to the social worker that the referral to Service A should have been completed earlier and that frontline staff would be given information about Service A including how to make a referral and its criteria;
• social workers should “use discretion when considering the appropriateness of advocacy for adults”.
27. Both these actions are noted to have been completed in summer 2020.
28. Ms B pursued her complaint to a stage 3 review panel in late 2020. The Review Panel did not overturn the earlier view on the provision of an advocate but did make a further recommendation in that respect. That recommendation stated that the children’s services team should “remind practitioners of the importance of referring or signposting women whose children are removed from their care for support. This support can take many forms and is dependent upon the woman’s needs and the family’s circumstances…”. The panel provided some examples of such support which may include advocacy, counselling, mediation.
29. The Council says that the recommendation at stage 2 to consider advocacy support for parents who do not meet the threshold for provision under the Care Act was shared within the senior leadership team by the adjudication manager and that this expectation was to be passed on to front line services.
30. The Council confirms that its frontline social care staff were contacted in January 2020 and then again in March 2020, to clarify the purpose, function and criteria of Service A. It has provided a copy of the information it gave its staff about Service A.

Handling of complaint

31. Ms B submitted her complaint at the end of September 2019. It provided its response to the complaint at stage 1 of the statutory procedure in early November. It calculates this as 25 working days later. Ms B told the Council she was dissatisfied with the response in late November.
32. The Council says that it then escalated the matter to Alternative Dispute Resolution. This involved a meeting between Ms B and a senior manager in the children’s social care team. Ms B was not dissatisfied with the outcome of this meeting however and then asked for the matter to be escalated to stage 2 of the statutory complaints procedure in early January.
33. In mid-January the Council appointed an investigator and an independent person at stage 2 of the procedure. They met Ms B in January and February and agreed the complaint to be investigated in early March 2020. The Council says it told Ms B in late March and mid-April that it had paused the complaint during the early part of the national lockdown due to the Covid 19 pandemic at that time. After making arrangements for the complaint investigator to use electronic files in late April the investigator completed her investigation and issued the report in early June.
34. The Council held a meeting with Ms B to discuss the findings in mid-June. An addendum to the report was then issued in late June following points raised by Ms B in that meeting. The adjudication was issued in late July and Ms B requested a stage 3 review panel at the end of July.
35. The stage 3 review panel took place in early October after the panel met in August and requested more information from the Council and the investigator and independent person who completed the stage 2 investigation. The stage 3 adjudication was issued around a week after the panel meeting.

Analysis

36. I consider the stage 2 investigation of Ms B’s complaint to the Council was thorough and properly undertaken and I do not therefore consider there is any need for me to reinvestigate the matters considered in that investigation. The investigator carefully considered the issues raised around the complaint about the failure to provide Ms B with an advocate: she concluded that the grounds for providing an advocate under the Care Act 2014 were not met and I can see that she had good grounds to reach this view. She considered the information she obtained from social workers and the social work manager which confirmed that Ms B had not asked for an advocate during the legal proceedings and in any event she was legally represented and her mother was providing her with support at that time, and she had previously been offered advocacy support (before the legal proceedings) which she did not want at that time. The adjudication at stage 2 accepted the investigator’s findings. For these reasons, I do not consider there are grounds for me to reach a finding of fault in regard to Ms B’s complaint that the Council wrongly failed to provide her with an advocate during the legal proceedings. In respect of the support she later received from Service A I also agree with the finding of the stage 2 investigation that this was avoidably delayed by around three months due to either poor communication in the social work team or a lack of clarity around who would take responsibility for making that referral. I consider this delay caused Ms B injustice in the form of delaying her receiving support following the conclusion of the legal proceedings: the information provided suggests that Service A would have had staffing capacity to provide her with a service form January 2020 and the evidence also suggests that she engaged with the service immediately when it was offered. I therefore consider the injustice was a two-month delay in her starting to receive support. I accept that, given the criteria for receiving a service from Service A, the referral could not have been made before November 2019 as it could not have been made while she was pregnant or until the conclusion of the second set of legal proceedings.
37. I recognise that, as a result of the complaint, the Council reminded its staff about Service A and how social workers could refer to that service and also that it reminded frontline staff about the availability of advocacy for parents who may need this where they did not meet the criteria for provision under the Care Act 2014.
38. In relation to the consideration of Ms B’s complaint by the Council, Ms B complained at stage 1 at the end of September 2019 and the adjudication at the end of the process following the stage 3 review panel was issued in October 2020 meaning the whole process took just over a year. There is some fault in the Council’s handling of the complaint under the statutory procedure:
• the use of Alternative Dispute Resolution between stages 1 and 2 led to a delay in the progress of the complaint. Alternative Dispute Resolution is referred to in the statutory guidance and not a problem if it does not hold up the process in regard to the statutory timescales but in this case its use delayed the matter being progressed to stage 2. I am also concerned that the Council’s published procedure for dealing with complaints under the children’s statutory procedure includes Alternative Dispute Resolution as part of the usual process and appears to be a requirement before a complainant is able to progress to stage 2. This would amount to fault though I recognise the Council says that in practice complainants are given a choice about ADR or proceeding to stage 2;
• delay in the completion of the stage 2 investigation and adjudication which took from early March (when the complaint was agreed) to the adjudication in late July. This amounts to around 100 working days and it should have been completed in a maximum of 65 days. Additionally, the stage 2 investigation process should actually have started in November when Ms B said she was dissatisfied with the outcome of the stage 1. I recognise that there was some delay around the early stages of the Covid lockdown from late March and April but there were other periods of delay that were avoidable and these amount to fault; and
• there was further delay in the period around the review panel which Ms B requested in late July but which did not take place until early October with the final adjudication being issued shortly after. So, the panel was not arranged within 30 days of Ms B requesting it. Had it been it would have taken place by late August. It was around two months after Ms B’s request that it took place and, whilst I recognise that the Panel wanted more information before the hearing, the requirements on timescales do not recognise this as a reason for delay so I therefore consider the review panel was avoidably delayed by around one month.

Agreed action

39. In order to recognise injustice caused to Ms B, the Council agrees:
• that in addition to the apology it has already made the Council will pay Ms B £200 to recognise the injustice caused by the delay in making the referral to Service A; and
• to recognise the frustration Ms B was caused by the avoidable delays in the handling of her complaint the Council will apologise and pay Ms B a further £200.
40. The above action will be completed within one month of the date of the final decision on this complaint. I recognise that the Council has already taken action to ensure that in future social workers are clear about the referral arrangements for Service A and about advocacy for parents who do not meet the Care Act 2014 criteria for this so make no recommendations on these points.
41. To address the concerns I have identified with the Council’s handling of the complaint and to ensure that the faults I have identified do not occur in relation to other complaints in future the Council will:
• ensure that its published policy makes it clear that complainants are not required to participate in Alternative Dispute Resolution before being permitted to move to stage 2 of the complaints procedure as the procedure currently states;
• confirm it will carefully monitor time taken to complete the Alternative Dispute Resolution process to ensure it does not delay the progress of complaints to stage 2 and provide evidence of this; and
• provide evidence that it has a process in place to track progress of complaints being considered under the statutory process and to ensure that the statutory timescales are met.
42. The Council will provide me with details of how it has completed the recommendation in point 41 within two months of the date of the final decision on the complaint.

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Final decision

43. There was fault by the Council in relation to Ms B’s complaint about delay in referring her for suitable support following the completion of legal proceedings in late 2019 and that there was avoidable delay in the consideration of her complaint under the statutory children’s complaints procedure. These faults caused Ms B injustice and the Council should take the recommended action to recognise this and ensure that such fault does not occur in future.

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Parts of the complaint that I did not investigate

44. I did not consider parts b), c) and d) of Ms B’s complaint because the matters raised in them arose during the care proceedings initiated by the Council. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended) In addition 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)
45. Based on the information I have seen I consider it was reasonable to have expected Ms B to have raised the matters she complains about in parts b), c) and d) within the care proceedings. In addition it appears these matters were in fact considered within the court proceedings. For these reasons I have not considered these matters.

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Investigator's decision on behalf of the Ombudsman