Summary: Ms X complained the Council’s investigation of her complaint under the statutory complaints procedure did not uphold all of her complaints. We will not investigate Ms X’s complaint as we are unlikely to achieve anything worthwhile for Ms X by further investigation.

The complaint

1. The complainant, Ms X complains the Council has not upheld all elements of her complaint. The outstanding issues are:
• The Council failed to register her daughter Miss Y as a child in need, or carry out annual assessments;
• Council officers did not attend SEN meetings despite requests from Miss Y’s school;
• The Council failed to provide adequate social care and support to Miss Y;
• The Council provided inaccurate information about paying for a carer and failed to provide any information about direct payments;
• The Council failed to maintain Miss Y’s EHCP provision; and
• The number of hours support given in the EHCP should have been extended to cover weekends and school holidays.

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The Ombudsman’s role and powers

2. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

3. 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

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Ms X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• Ms X 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

Law and Guidance

5. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. Stage One (which is normally a response by a manager), Stage Two (involving an investigating officer and an independent person) and a Stage Three Panel. The accompanying statutory guidance, Getting the Best from Complaints, explains councils’ responsibilities in more detail.

What happened here

6. Following an earlier complaint to the Ombudsman, the Council investigated Ms X’s complaint under stage two of the statutory complaint procedure. The investigation began in June 2019 and concluded in January 2020. The investigation upheld four of Ms X’s 10 heads of complaint. Paragraph 1 above sets out the heads of complaint that were not upheld.
7. The Council offered to meet with Ms X to discuss the findings and agree an appropriate good will payment. Ms X was unhappy the investigation had not upheld all elements of her complaint and asked for it to considered by a stage three review panel.
8. Due to COVID-19 restrictions, the stage three review panel hearing took place remotely. The minutes of this hearing show the panel considered each of the complaints the stage two investigation had not upheld in turn. Ms X was given the opportunity to comment on each head of complaint. The minutes show Ms X provided additional information, asked questions, and challenged the findings in the stage two report.
9. Following the meeting, the panel chair wrote to the Council and Miss X setting out the panel’s findings, conclusions and recommendations. The panel agreed that the decisions not to uphold the outstanding complaints set out in paragraph 1 above were correct, save for Ms X’s complaint regarding the maintenance of Miss Y’s EHCP provision. The panel made no finding in relation to this complaint as it considered this matter should have been addressed by the college and was not strictly within the scope of the statutory complaint procedure.
10. The panel noted the Council had offered to make a goodwill payment as part of the stage two process. It suggested any payment should include an amount to reflect time and trouble, delay, distress, and uncertainty.
11. The Council accepted the panel’s findings and recommendations and offered to meet with Ms X to discuss the upheld complaints and an appropriate payment. The Council has since met with Ms X and made a payment equivalent to the weekly cost of support Miss Y had not received during the period of delay and an additional payment for time and trouble.
12. Ms X remains unhappy the Council has not upheld all of her heads of complaint and has asked the Ombudsman to investigate her complaint.
13. In response to the draft decision Ms X states her primary concern is that Council did not uphold her complaint that it failed to register Miss Y as a Child in Need in 2005 and did not provide appropriate care and support outside school hours. Ms X disputes the Council’s claim it registered Miss Y as a Child in Need as it has not provided a copy of the register or carried out statutory annual assessments.
14. Ms X asserts the Council should make a payment equivalent to the cost of the care and support Miss Y missed out on over a thirteen year period because the Council failed to assess her needs. She states Miss Y was totally reliant on her for all her needs. Although this is to be expected of a child when they are five, you would not expect a parent to still be taking their teenage child to the toilet or bathing them. Ms X states the assessments carried out in 2009 and 2014 were of the whole family. They were not specifically related to Miss Y’s care or the management of her medical condition.
15. Ms X considers her complaint warrants further investigation, and that the Ombudsman should be able to consider any issues that have not achieved the desired results.

Analysis

16. Ms X’s complaint has now been through the full statutory procedure. She can complain to the Ombudsman where she is unhappy with the result or with the way the complaint has been dealt with. But we cannot look at the merits of decisions which have been properly made. Where a council has investigated a complaint under the statutory procedure, we would not normally re-investigate it unless we consider that investigation was flawed.
17. That is not the case here. In line with the Children Act 1989 Representations Procedure (England) Regulations 2006, the Council appointed an independent investigator at stage two, with oversight by an independent person. The stage two report took account of the relevant evidence and is detailed and reasoned in its findings. At Ms X’s request, the stage three panel reviewed the stage two investigation and was satisfied it was appropriate.
18. Ms X disagrees with the stage two and stage three findings, but there is no evidence of flaws in the process or that the investigation was not robust. The independent investigator reviewed the Council’s historical children’s services files and documents held by its SEN service, and spoke to Ms X, Miss Y, and relevant officers.
19. I consider it unlikely the Ombudsman could add anything to this investigation or achieve anything worthwhile for Ms X.
20. Ms X believes the Council should compensate her for the care and support Miss Y could have received between 2005 and 2018 had the Council carried out regular assessments. However, even if the Council had upheld Ms X’s complaint, it would not be possible to retrospectively determine at what point in this 13-year period the Council may have assessed Miss X needed additional care and support beyond what Ms X provided. Or the extent of any additional care and support.

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Final decision

21. We will not investigate Ms X’s complaint as we are unlikely to achieve anything worthwhile for Ms X by further investigation.

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Investigator's decision on behalf of the Ombudsman