Summary: Mrs B complains the Council did not consider her statutory children’s services complaint correctly. She also complains the Council did not update her about its implementation of the recommendations it agreed to. We found fault with the Council. It delayed the complaint investigation and did not update Mrs B about the actions it took to complete the stage 3 recommendations. These faults caused Mrs B frustration. The Council will apologise to Mrs B and pay a financial remedy.

The complaint

1. Mrs B complains the Council did not consider her complaint correctly. She says:
• the complaint procedure was delayed;
• the investigating officer did not have access to all relevant information;
• Council staff lied to the investigating officer; and
• the Council did not update her about its implementation of the recommendations it agreed to.
2. Mrs B says the delays and flaws in the Council’s complaint investigation caused her frustration.

Back to top

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. When a case has been considered via the statutory complaints procedure, we generally would not reinvestigate the substantive issues. The statutory procedure is designed to provide significant independence and detailed analysis of concerns raised. This means reinvestigation is neither necessary nor warranted unless there are serious and fundamental flaws in the way the case was investigated.
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

Back to top

How I considered this complaint

8. I considered:
• Mrs B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
9. Mrs B and the Council commented on a draft decision. I considered their comments before making a final decision.

Back to top

What I found

Legislation and guidance

10. Section 26(3) of the Children Act, 1989 says all functions of the Council under Part 3 of the Act may form the subject of a complaint under the statutory complaints procedure. Child protection investigations are under Part 5 of the Act. Councils do not have to use the statutory complaints procedure to consider complaints about its child protection functions.
11. Complaint investigations under the Children Act 1989 consist of three stages.
12. Stage 1: Staff at point of service delivery try to resolve the complaint.
13. Stage 2: An investigating officer (IO) and an independent person (IP) investigate the complaint. The IO is responsible for the investigation and the IP ensures it is open, transparent and fair.
14. The IO writes a stage 2 report which includes:
• details of findings, conclusions and outcomes against each point of complaint (i.e. “upheld” or “not upheld”); and
• recommendations to remedy any injustice to the complainant.
15. Once the IO has finished the report, a senior manager should act as adjudicating officer and consider the complaints, the IO’s findings, conclusions, and recommendations, any report from the IP, and the complainant’s desired outcomes. The adjudicating officer should write to the complainant with their decision on each complaint (Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).
16. Stage 3: A review panel considers the complaint. The panel must consist of three independent people. Following the panel, the members write a report containing a brief summary of the representations and their recommendations for resolution of the issues (The Children Act 1989 Representations Procedure (England) Regulations 2006 19(2)).
17. The council must send its response to the panel’s recommendations to the complainant within 15 days of receiving the panel’s report. The response should set out how the council will respond to the recommendations and what action it will take. If the council deviates from the panel’s recommendations it should explain its reasoning in the response (Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).
18. The timescales in working days for the procedure are:
• 10 days at stage 1 (with a further 10 days for more complex complaints or extra time if an advocate is required);
• 25 days at stage 2 (with maximum extension to 65 days);
• 20 days for the complainant to ask for a review panel;
• 30 days to meet and hold the review panel at stage 3;
• 5 days for the Panel to issue its findings; and
• 15 days for the local authority to respond to the findings (Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).
19. In March 2015, the LGSCO published a thematic report highlighting learning from its investigations into the Children Act complaints system, ‘Are we getting the best from children’s social care complaints?’. A common issue raised was delay in the complaints procedure. The report gave councils advice about how to avoid this fault.
20. Article 8 of the Human Rights Act 1998 says everyone had the right to respect for their private and family life. This right may be restricted to protect the rights and freedoms of others. However, the interference must be necessary and proportionate (Equality and Human Rights Commission 2014 Human Rights: Human Lives – a guide to the Human Rights Act for public authorities).

What happened: background

21. This chronology includes key events in this case and does not cover everything that happened.
22. Mrs B and her daughter, C, were living with her partner, Mr D. In March 2019, the Council received a referral for C. The referrer raised concerns about Mr D physically assaulting a child and being domestically abusive to previous partners.
23. The Council advised Mrs B Mr D could not have contact with C while it assessed his risk. Mrs B and C moved out of Mr D’s home and C started a new nursery. Mrs B asked the Council to complete a psychological assessment for Mr D.
24. Following a strategy discussion, the Council started a child protection investigation for C.
25. In June 2019, Mrs B commissioned an independent psychological assessment for Mr D because the Council had not completed its assessment and she felt the case was drifting.
26. The Council completed its risk assessment in October 2019. It recommended the Council support a plan to reunite C, Mrs B and Mr D as a family.

What happened: complaint investigation

27. In June 2019, Mrs B complained to the Council about the child protection investigation. She said staff:
• were unprofessional, aggressive and bias against Mr D;
• did not take an evidence-led approach to the case;
• had not completed a risk assessment for Mr D;
• made her move and put C in a new nursery;
• suggested Mr D posed a sexual risk to children;
• delayed giving her minutes of meetings; and
• refused to transfer her case to another team.
28. Mrs B complained she had to give up her job because of the demands placed on her by children’s services. She said she felt bullied and victimised. She was concerned the Council had violated her human rights.
29. The Council told Mrs B it would consider her complaint under the statutory children’s complaint procedure. It advised her the timescale to provide her a stage 1 response was 10 working days, but it could extend this to 20 working days.
30. The Council met with Mrs B, Mr D and Mrs B’s mother in July 2019 to discuss the complaint. The Council apologised for how the experience of being involved with children’s services made Mrs B feel. It said it would look into the issues she raised and provide a written response by the third week in August 2019.
31. The Council sent Mrs B a thorough 11-page stage 1. The Council:
• accepted Mrs B could have perceived the use of language by some staff as threatening and aggressive. It apologised for this.
• apologised for its delay completing a risk assessment for Mr D.
• acknowledged it would have been beneficial to discuss other accommodation options with Mrs B that could have prevented C from having to move to a new nursery.
• confirmed there was no evidence that Mr D posed a sexual risk to children and apologised that this was suggested.
• was not aware she had to leave work to undertake the domestic abuse courses it asked her to attend.
32. The Council transferred Mrs B’s case to another team. It said it did not consider it necessary to pay her for the psychological assessment she commissioned or compensate her for loss of earnings.
33. Mrs B asked the Council to escalate her complaint to stage 2. Mrs B met with the IO and IP in October 2019 and agreed the statement of complaint. There were 41 complaints.
34. The IO and the IP read C’s files and interviewed Council employees. The IO kept Mrs B up to date with the progress of their investigation and responded to her queries. The IO apologised that it took longer than he expected to review the evidence and write his report.
35. The IO finished his report in February 2020. The IO said the delay in the report was because of the volume and complexity of the complaints being investigated. He upheld nine complaints and partially upheld four. Below is a summary of these findings:
• The social worker used an inappropriate tone in one of her case recordings.
• The social worker’s manager may have raised her voice because of a hearing impediment and this could have been perceived as her shouting.
• Language used in a letter to Mrs B could have been regarded as threatening in terms of C being removed from her care.
• Staff wrongly referred to Mr D as being convicted of an offence towards a child.
• The Council did not reply to letters from Mrs B querying the written agreement, seeking a psychological assessment of Mr D and asking it to amend information in a child protection conference report.
• The Council did not properly explain its reason for saying Mr D could not attend Mrs B ‘s property regardless of whether C was present.
• The social worker wrongly told Mrs B, Mr D has failed parenting courses he had attended.
• The Council did not carry out police checks on C’s maternal family.
• The Council delayed completing a risk assessment by three and a half months.
• The Council delayed transferring C’s case to a new team.
36. The IO recommended the Council:
• apologised for the complaints upheld and partially upheld.
• briefed officers about the contents of the stage 2 report.
• considered paying Mrs B for the cost of commissioning a psychological assessment.
• told professionals involved with C that Mrs B is not someone who uses drugs alcohol and she does not have epilepsy.
• briefed officers about the Council’s policy about the use of recording devices in meetings.
• assured Mrs B there was no unauthorised access to C’s file.
37. The IP completed her report in March 2020. The IP was satisfied the IO has demonstrated objectivity and fairness and the investigation was thorough. The IP confirmed they were given access to relevant files and documents. She said she regretted the investigation exceeded the timescales and explained there was a large amount of paperwork to read and a member of staff they wanted to interview was absent from work until January 2020.
38. The IP agreed with the nine complaints upheld by the IO. She disagreed with seven of the IO’s findings. She felt five of these complaints should be ‘not upheld’ and two should be ‘partially upheld’ where the IP had made a ‘no finding’ decision. As well as the recommendations made by the IO, the IP recommended the Council:
• remind social workers it was helpful to follow up in writing when actions were agreed in meetings.
• respond promptly to letters, emails and phone calls whether or not an immediate answer can be provided.
39. The Council sent Mrs B its adjudication letter in May 2020. It apologised for the delay investigating her complaint. It advised this was due to the changing needs of the service because of the COVID-19 pandemic. The Council accepted all the IO’s finding bar two:
• The Council decided not to uphold the complaint the social worker decided the outcome of the case before completing an assessment and wanted to keep Mrs B and Mr D apart. The IP did not uphold the complaint and the IO said he could not make a finding.
• The IO and IP did not uphold the complaint the social worker implied Mr D had committed a sexual offence. The Council decided to partially uphold the complaint because staff asked Mrs B to carry out a Sarah’s Law check. The child sex offender disclosure scheme, or ‘Sarah’s Law’, allows parents to ask the police for information about a person who has contact with their child, or a child close to them, if they are concerned the person may pose a risk. The Council said this was disproportionate given there were no concerns about sexual harm.
40. The Council apologised for the complaints that were upheld or partially upheld. The Council agreed to the stage 2’s reports recommendations and reimbursed Mrs B for the cost of the psychological assessment.
41. Mrs B said she was unhappy with the findings for 12 of her complaints and asked the Council to escalate these to stage 3 in June 2020. Mrs B asked the Council to pay her compensation for the impact of its faults on her, C and Mr D and for breaching their human rights. The Council told her the statutory complaints procedure was not the correct mechanism to consider claims for compensation for breaches of her human rights. It suggested she seek legal advice about this matter.
42. The Council updated Mrs B with the actions it had taken following the stage 2 investigation.
43. The Council held the stage 3 panel in September 2020. Before the meeting it sent Mrs B a panel pack, list of attendees and the Department of Education’s statutory guidance for local authority children’s services on representations and complaints procedures. The panel agreed with the stage 2 findings for all complaints apart from two. For these complaints it changed the decisions to ‘no finding’. The panel recommended the Council:
• give Mrs B a copy of the ‘not fit for purpose’ assessment;
• mark the assessment as ‘not fit for purpose’;
• give Mrs B proof it sent her a copy of the conference minutes by recorded delivery;
• pay Mrs B compensation to recognise the distress she felt because of how she was spoken to by a member of staff;
• clarify use of the terms ‘record’ and ‘recording’ to avoid confusion;
• consider whether to transcribe audio recordings used as evidence in the complaints procedure; and
• provide training to child protection workers about the importance of initial visits in establishing a cooperative relationship with parents.
44. In October 2020, the Council sent Mrs B its adjudication letter. The Council accepted the stage 3 panel’s findings and recommendations. It decided not to pay Mrs B compensation to recognise the distress she experienced because of the way she was spoken to because it considered an apology was sufficient. It sent her an action plan for completing the agreed recommendations.
45. The Council’s updated action plans show it has completed all the actions bar one. The complaints team is still considering whether it should transcribe audio evidence if it is used in complaint investigations.

Response to enquiries

46. As part of my investigation, I asked the IO to comment on this complaint.
47. The IO commented, “I can confirm that the Stage 2 Investigation benefitted from access to information held on Council records. They were inspected by the Investigating Officer and IP. There was no indication of information being withheld. The Stage 2 investigation also benefitted from evidence / information furnished by [Mrs B].”
48. Mrs B supplied two letters she said were not included in the documents provided to the IO and IP. One letter raised queries about the working agreement and the other said by moving out of the family home she could lose her job. Both these issues were considered by the IO and IP during their investigation.
49. In response to concerns raised by Mrs B about officers lying, the IO said, “I can confirm that both I and the IP [independent person] were satisfied that both Officers had cooperated fully and provided information, both factual and contextual.”
50. The Council accepted it did not update Mrs B about the stage 3 actions it completed.

Analysis

51. The Council delayed its complaint investigation. At stage 1, there was delay of five weeks. Stage 2 took 19 weeks longer than it should have. At stage 3 there was a delay of nine weeks. In total, the Council delayed the complaint procedure by eight months. While I recognise some of the delay was caused by the complexity of the case and the Council kept Mrs B updated, the timescales for the statutory complaint procedure are set out in law and must be met. The Council was at fault for the delay in the complaint investigation. This delay caused Mrs B frustration.
52. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. However, if the Council had adhered to the timescales for statutory complaint investigations in the Department of Education’s statutory guidance, it would have completed the complaint procedure before the COVID-19 pandemic.
53. Mrs B was concerned the IO did not have access to all relevant information during the stage 2 complaint investigation. She supplied two letters she said were not given to the IO and IP. The issues raised in these letters were considered by the IO and IP. The IP confirmed in her report that the IO had access to the files and documents for the case. In response to enquiries, the IO stated he and the IP had access to the Council records and there was nothing to suggest information had been withheld. Mrs B had the opportunity to provide any evidence she felt was relevant to the investigation at stages 2 and 3. On the balance of probabilities, the IP and IO had access to the information they needed to complete their investigation.
54. In response to Mrs B’s concerns staff misrepresented information, the IO stated he and the IP were satisfied the Council staff cooperated with the investigation. There is no evidence to suggest the Council staff lied or misrepresented information during the complaint investigation.
55. The Council created action plans in response to the recommendations from the stage 2 and 3 investigations. The Council shared these action plans with Mrs B. The Council updated Mrs B about its progress towards the stage 2 but not the stage 3 action plan. The Council’s failure to update Mrs B was fault. I shared the Council’s updated action plans and related evidence with Mrs B as part of this investigation, remedying the injustice caused by the Council’s fault.
56. I do not consider the actions taken by the Council fully remedied the injustice caused to Mrs B, C and Mr D by the Council’s faults. The complaint investigation found there was a three-and-a-half-month delay in the Council completing its risk assessment. If it were not for this delay, C, Mrs B and Mr D would have been reunited as a family sooner. The Council did not have due regard to the family’s right to a family life by unnecessarily delaying their reunification. The delay caused the family distress and was a significant injustice. My recommended remedies aim to put the person who has suffered injustice back in the position they would have been in, but for the fault. Where that is not possible, I can suggest a financial sum instead to recognise the injustice. This is not compensation; compensation is a matter for a court. I have recommended the Council make a financial payment to recognise the injustice caused by its delay in completing its risk assessment.

Agreed action

57. Within one month of the final decision, the Council will:
• Apologise to Mrs B for the faults identified in this decision statement.
• Pay Mrs B £250 for the frustration caused by the delay in its complaint investigation.
• Pay Mrs B £750 to recognise the injustice caused to the family by the Council’s delay in completing its risk assessment.
• Remind staff involved in statutory complaints of the timescales for the statutory children’s complaint procedure and provide them with a copy of our 2021 guidance.
58. The Council should provide the Ombudsman with evidence these actions have been completed.

Back to top

Final decision

59. I have completed my investigation and uphold Mrs B’s complaint. Mrs B was caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice. 

Back to top

Investigator's decision on behalf of the Ombudsman