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Surrey County Council (20 006 582)

Category : Children's care services > Other

Decision : Upheld

Decision date : 30 Jul 2021

The Ombudsman's final decision:

Summary: the Council was wrong to say that Ms M’s complaint about the attitude or behaviour of staff could not be dealt with by the complaints process. The Council has agreed to respond to Ms M’s complaint.

The complaint

  1. Ms M complains the Council has not investigated her complaint. Ms M and her son, B, are supported by the Child in Need team. Ms M is unhappy with the support they have received. In particular, Ms M complains:
    • there have been too many changes in social worker which has caused delay and inconsistency;
    • the family support worker, who Ms M found helpful, was removed from the case;
    • work the Council promised to do with B has not been done;
    • statutory visits have not been carried out;
    • communication has been poor; and
    • the Council disclosed sensitive personal information.

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What I have investigated

  1. I have considered the Council’s response to Ms M’s complaint. I have not investigated Ms M’s concerns.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have considered:
    • information provided by Ms M;
    • information provided by the Council.
  2. I invited Ms M and the Council to comment on my draft decision.

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What I found

  1. Ms M first complained to the Council in June 2020. She said she wanted to complain about the way she had been treated by social workers and managers.
  2. The Council invited Ms M to provide details and said it would refer her concerns to the relevant senior manager for review. The Council explained that allegations of misconduct or unprofessional behaviour would be dealt with by the Council’s HR management and supervision process, not the complaints process. The Council said it would not be able to tell Ms M the outcome.
  3. Ms M asked to speak to the complaints team to discuss her concerns. She said she was in the process of putting her complaint together.
  4. The Council arranged to speak to Ms M, although it warned her it would not consider complaints about matters more than 12 months ago.
  5. Ms M made a formal complaint in early July 2020. She said she would add to her complaint once she received a response to her subject access request.
  6. The Council acknowledged Ms M’s complaint. The Council explained:
    • allegations of misconduct or unprofessional behaviour would be dealt with by the Council’s HR management and supervision process, not the complaints process;
    • the Council will consider factual inaccuracies in reports, but could not change professional opinions;
    • ‘breaches of confidentiality’ should be referred to the Information Governance Team; and
    • if Ms M decided to instruct a solicitor, Regulations say it would not be possible to consider matters through the complaints process.
  7. On 14 September, Ms M contacted the Council to say she was still working through the information in her subject access request. She asked the Council to respond to the complaints she had made and said she would add to her complaint in the coming weeks.
  8. The Council said it had referred Ms M’s concerns to a team manager and again explained that allegations of misconduct and unprofessional behaviour would be dealt with through HR management and supervision rather than the complaints process and Ms M would not be informed of the outcome. The Council directed Ms M to Social Work England, the regulator for social workers, and the Ombudsman if she remained dissatisfied.
  9. Ms M made further complaints about social workers in September and October 2020. A complaints manager responded and explained again the Council’s approach to complaints about the conduct of social workers.
  10. Ms M contacted the Council’s Chief Executive in October 2020. She complained she had not received a response to the complaint she made in June 2020. She said she wanted her complaints to be considered as complaints, not through the Council’s HR management and supervision processes. She said she had contacted the Ombudsman, and we had advised she needed a complaint response from the Council before she could complain to us.
  11. The Council invited Ms M to meet to discuss her concerns. Ms M said again that she wanted her complaints to be considered as complaints, not through the Council’s HR management and supervision processes.
  12. The meeting took place by telephone at the end of November 2020. The Council agreed to arrange a mediation meeting with the team manager, service manager and an independent person and suggested an advocate for Ms M’s son.
  13. The mediation meeting took place on 13 January 2021. The meeting explored Ms M’s concerns. A manager agreed to explore a number of points and write to Ms M to explain her findings.
  14. Ms M remains dissatisfied the Council has not responded to her complaint and now complains to the Ombudsman.
  15. The Council provided a letter explaining why it does not consider it appropriate to respond to Ms M’s complaints. The Council’s letter concluded,

“It is clear that this has been and continues to be a difficult time for [Ms M] and for [B]. It is clear that the experience shared with me is a poor one. I do not however believe that addressing these concerns through the complaint process at this time is appropriate. This is because we are dealing with a poor experience [and] the majority of the concerns raised are in relation to staff fitness to practice. Ms M has confirmed that she wished for support in making an early referral to the Ombudsman. I have provided the support requested in producing this letter.”

Complaints: the law

  1. A complaint is an expression of dissatisfaction about a council service that requires a response. (Effective complaint handling for local authorities published by the Local Government and Social Care Ombudsman in October 2020)
  2. There is a formal procedure, set out in law, which councils must follow to investigate certain types of complaint about Children’s Services. It involves:
    • a written response from the Council (Stage 1);
    • the appointment of an independent investigator to prepare a report (Stage 2); and, if the person making the complaint requests
    • an independent panel to consider their representations (Stage 3).
  3. This is known as the Children Act complaints process.
  4. Regulations and guidance set out the types of complaint which are eligible, and the process the Council must follow. The Council referred to the Regulations in its correspondence with Ms M.
  5. The guidance says complaints may arise as a result of many things, including:
    • 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;
    • quantity, frequency, change or cost of a service;
    • attitude or behaviour of staff;
    • application of eligibility and assessment criteria;
    • the impact on a child or young person of the application of a local authority policy; and
    • assessment, care management and review.

(Getting the Best from Complaints. Social Care Complaints and Representations for Children, Young People and Others published by the (then) Department for Education and Skills in 2006, section 2.2)

  1. Councils should consider complaints which are not eligible for the Children Act complaints process under their corporate complaints procedures. Where only part of a complaint is eligible for the Children Act complaints process, council can still use the process to provide a single, comprehensive complaint response. (Children’s Statutory Complaints Process. Guide for practitioners published by the Local Government and Social Care Ombudsman in March 2021)

Consideration

  1. Ms M has expressed dissatisfaction with a Council service and requested a response. Ms M made a complaint. The Council declined to consider her complaint. The Council has not responded appropriately. This is fault.
  2. Government guidance says complaints may arise as a result of the attitude and behaviour of staff. The Council was wrong to say that Ms M’s complaint about the attitude or behaviour of staff could not be dealt with by the complaints process.
  3. The Council may choose to take action under its HR management and supervision process, which it would not share with Ms M, but it must also respond to her dissatisfaction with the service through the complaints process. The two processes are not mutually exclusive.
  4. From the information the Council provided, it looks like much, if not all, Ms M’s complaint is eligible for the Children Act complaints process.
  5. If this is the case, the meeting the Council arranged on 13 January 2021 and the follow up response from the team manager go some way to providing a response at the first stage of the Children Act complaints procedure. As Ms M is unhappy with the response, the Council should now consider her complaint at the second stage. If she remains dissatisfied after stage 2, Ms M may request a complaint review panel consider her complaint at stage 3.

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Agreed action

  1. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. We may also recommend the Council makes a symbolic payment to acknowledge what could have been avoidable time and trouble in pursuing a complaint.
  2. I recommended the Council:
      1. apologises to Ms M for failing to respond appropriately to her complaint;
      2. makes a symbolic payment of £150 to recognise her time and trouble pursuing the matter; and
      3. arranges for Ms M’s complaint to be under the appropriate complaints process.
  3. I recommended the Council takes these actions within 2 weeks of my final decision.
  4. The Council accepted my recommendations. The Council says it has changed its approach to complaints about staff conduct. I welcome the changes the Council has made.

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Final decision

  1. I have completed my investigation because the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman

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