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North Tyneside Metropolitan Borough Council (20 008 931)

Category : Children's care services > Other

Decision : Upheld

Decision date : 18 Aug 2021

The Ombudsman's final decision:

Summary: Ms B complained that the Council failed to properly address her complaints about the way it handled the placements of her children. She does not consider the payment offered by the Council in recognition of fault is sufficient. We consider the level of distress caused by the Council’s actions warrants a higher remedy.

The complaint

  1. Ms B complains that the Council failed to properly investigate her complaints about the way the Council handled the placements of her children.
  2. She says this caused her mental health problems and distress to her whole family.

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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. 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)
  3. 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)
  4. 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.
  5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
  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

  1. I researched the relevant guidance and made enquiries with the Council.
  2. 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

Background

  1. Ms B is the mother of three children who have been removed from her care. In 2016 the court refused an application made by Ms B for leave to oppose the making of an adoption order for two of her children.
  2. Ms B made a number of complaints to the Council in relation to those court proceedings. She was unhappy with the way the Council handled her complaints and came to the Ombudsman. We could not investigate complaints that related to what happened at court.
  3. However, we were concerned that the Council did not respond to Ms B’s complaints about court proceedings. The Council does not have the same limitation that we do. We therefore recommended, on 14 November 2018, that within one month of our final decision, the Council should carry out a further investigation into the complaints made about the relevant court proceedings. We said that before the investigation should start, the Council should hold a meeting with Ms B to agree the details of the complaint and the desired outcomes. The Council agreed to implement our recommendations.

What happened

  1. The complaint was to be investigated under the Statutory Complaints Procedures for complaints about children and social care.

The complaints procedure

  1. There are three stages to the statutory social services complaints procedure. This investigation was to continue at stage two, which is the investigation stage.
  2. At this point a Council should appoint an investigating officer to carry out a detailed investigation with an independent person to oversee the investigation – the investigation should be completed within 25 working days. This may be impractical in some cases where the complaint, for instance, is particularly complicated. It may therefore be extended to a maximum of 65 working days. All extensions should be agreed by the Complaints Manager.
  3. The stage two timescale must start from the date that the complaint is finalised.
  4. Once the investigating officer has finished his report, a senior manager should act as Adjudicating Officer and consider the complaints, the investigator’s findings, the conclusions, and recommendations.

In this case

  1. The meeting between the investigator, independent person and Ms B did not happen until March 2019. Ms B was not available until late January 2019 and there were further delays.
  2. At the initial meeting a complaint statement was agreed.
  3. In June 2019 the Council wrote to Ms B to inform her that it was expected the investigation would not be completed until mid-July. It apologised for the delay.
  4. At the end of July 2019 Ms B wrote to the Council to ask why the investigation had gone beyond the 65-day deadline, which had been the 11 July 2019.
  5. On 31 July 2019 the initial complaint was amended, including changes to the dates and names of some social work staff involved in the complaint. These changes did not alter the substance of the complaint. Ms B added an additional hoped-for outcome. No staff were re-interviewed.
  6. On 28 August 2019 the investigator and independent person met with Ms B to discuss a draft report with Ms B. At her request they left her with a written copy for her to make a written response. She provided this on 28 November 2019.
  7. The stage two investigator’s report was issued on 19 March 2020. The independent person commented on the “significant delays” in the investigation but approved the report.
  8. The report upheld the majority of the complainant’s complaint headings, the content of which I do not need to go into here.
  9. Ms B continually asked why she had not received the investigator’s report.
  10. However, the Adjudicating Officer had detected a number of issues with the report. She wrote to the investigator in late June 2020 to raise these issues. She only upheld two of the complaints made by Ms B, deeming the investigator’s response to the other complaint headings to have been deeply flawed by a fundamental misunderstanding about the nature of the documents provided to court. I will say more on this below.
  11. The investigator responded to the Council on 8 July 2020. He said it would be best to have a meeting about the issues. After this, there is no record of any further communication, despite the Council chasing a response again. In August 2020, the records show it decided to send the Adjudicating Officer’s response to Ms B without receiving any commentary on the adjudicator’s findings from the investigator.
  12. The independent officer said he did not totally agree with the Council but was disappointed that, because the investigator did not respond to the queries, he also did not get the opportunity to form a response. He was, however, given an opportunity to air his views at the later stage three stage of the complaint process.

The Adjudicating Officer’s response

  1. The Adjudicating Officer said, among other things, that she:
  • Was very disappointed in the quality of the investigation and the delay was “absolutely unacceptable”.
  • The conclusions of the investigating officer were largely based and influenced on an inaccurate assumption about the nature of the court documents (which many of the complaint points were focused around) and which led to parts of the complaint being upheld when they should not have been.
  1. The Adjudicating Officer said the inaccurate assumption was that the two statements written for court were parenting assessments. Instead, they were statements in response to Ms B’s application for leave to the court to oppose the adoption of her children. These statements are very different to parenting assessments.
  2. Ms B’s considers that even though the documents are different, there were still problems with those documents, and they should not have been used in court.

Stage three

  1. Stage three is the review stage. A complainant can request an independent complaints review panel to consider the complaint. The panel must consist of three independent people.
  2. The Guidance says that review panels are designed to, among other things:
  • Listen to all parties;
  • Consider the adequacy of the Stage 2 investigation;
  • Reach findings on each of the complaints being reviewed;
  • Support local solutions where the opportunity for resolution between the complainant and the local authority exists.
  1. The Panel must be held within 30 working days of the receipt of a request for a review. The local authority should acknowledge the complainant’s request for a Review in writing within two days of receiving it. The Panel Review should be provided locally and with due regard to the complainant’s availability and convenience.

In this case

  1. Upon receiving the adjudication letter, on 24 August 2020, Ms B asked to progress her complaint to stage three. The records show that at this stage she had still not been given a copy of the stage two investigation. She repeatedly asked for copies of both the investigating officer and independent officers reports and it appears that they were not provided until late September 2020.
  2. In mid-October 2020 the Council suggested that Ms B might want to put the panel hearing on hold so that her case could be investigated by another officer.
  3. Ms B wanted to proceed. The hearing was attended by both the investigating officer and independent officer.
  4. The records confirm that at the hearing, the investigating officer and independent officer accepted the Adjudicating Officer’s findings that a mistake had been made about the nature of the court documents Ms B had been complaining about.
  5. Many of the complaint elements that were addressed by the panel are issues that the Ombudsman does not have the jurisdiction to look at. For instance, the panel did not form a view about whether information in court documents was correct or not. I can not comment on that as these are issues that could have been dealt with in court.
  6. The panel set out its findings on 26 November 2020. On a number of issues related to the incorrect understanding of the core documents, it made no findings. It upheld the same elements of the complaint that the Adjudicating Officer had upheld. It also upheld one more element and partially upheld another.
  7. It made a number of recommendations with an aim to improve the service provided to people in Ms B’s position. Among these were, in summary:
  • that former employees who are contributing to stage two complaints should be given the opportunity to attend the Council and review files before interviews.
  • that investigating officers and independent persons are directed to identify specific documents with dates and titles when formulating a statement of complaint, and;
  • that the Council’s complaints department staff check statements of complaint for accuracy
  1. It also asked the Council to reconsider the offer of redress it had made to Ms B. This had been:
  • £200 for the time and trouble in raising the complaint
  • £200 for delays in the investigation of the complaint, and
  • £100 for each issue in relation to parental assessments and not receiving information about one of her children.
  1. The total offered was £600, which Ms B found insulting.
  2. The Council reconsidered this offer. It offered a further £200 for the time and trouble Ms B had taken bringing matters to the attention of the Council. It offered a £100 in recognition that it was unable to evidence that a social worker offered to go through her report with Ms B. It also offered a further £200. This brought the total offered to £1100.
  3. The Council said that it could not action a number of Ms B’s desired outcomes. It referred to the panel’s explanation that these were outside the remit of the complaint considered.
  4. Ms B’s view is that she did not want to sign the original complaint statement, setting out the remit of the complaint, but was persuaded to do so by the investigator and independent officer because she trusted they would complete a thorough investigation, which did not happen.

Analysis

  1. Ms B had already struggled to get her complaint looked at properly before this complaint was raised. It was important that the Council addressed her complaint properly. This did not happen, which is fault causing injustice.
  2. I appreciate that she says she was unhappy signing the original statement of complaint. However, she did sign it and was also given a further opportunity to comment on the first draft of the investigation. I conclude that while there were unacceptable delays in this case, she was aware of what was being investigated and the limits to the investigation.
  3. The stage two investigation should have been completed within a maximum of 65 days. It was already past 65 days when Ms B added to the complaint. This is fault causing injustice. Ms B took some time to write her response to the first draft of the investigator’s report, but even so, the investigator almost took another four months to complete his report. The Council’s Adjudicating Officer said this delay was absolutely unacceptable and I agree.
  4. It is also concerning that the council officers who were interviewed during the process did not notice that the focus of the complaint was incorrect. It must have caused Ms B immense frustration and distress to be told that while she had waited over a year for the outcome of the investigation, it had been conducted incorrectly.
  5. The Council’s overall offer for the time and trouble and delays she experienced is £600. I do not consider this is sufficient. It is hard to place a monetary value on the distress Ms B must have suffered but I consider the Council should make a higher payment in recognition of the upset its incorrect focus must have caused. If the complaint statement had been properly monitored and checked for accuracy at the outset of the investigation, Ms B would have been spared the sense of uncertainty and disappointment she now has about the findings made at the end of the investigation.
  6. However, while I can understand why Ms B did not want another investigator to look at the complaint again before going to stage three, she was offered that opportunity. I have considered that the Council made this offer when recommending a further payment to acknowledge her distress.
  7. With respect to the other offers of payment made by the Council, I am satisfied they are adequate. In total, I consider Ms B should be offered £1300.
  8. I accept that it must be very dissatisfactory for Ms B that the stage three panel found that it could not make a finding on a number of the complaint points Ms B raised. However, this was because of the failings of the stage two process. As I have found that the Council offered Ms B the opportunity to repeat the stage two process before going to stage three, I cannot criticise the stage three panel’s inability to make findings on those complaint elements.
  9. I have not recommended that the Council apologise to Ms B. It has already apologised and I do not consider a further apology would be helpful.
  10. I considered making further recommendations to ensure that the mistakes that caused the investigation to be so fundamentally flawed do not happen again. However, I consider that the panel’s recommendations, particularly that the complaints department should ensure the accuracy of any complaint statement, addresses the fault at the heart of this complaint. I do not consider I can add anything further to that.

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Agreed action

  1. Within a month of my final decision, the Council should pay Ms B the sum of £1300 in recognition of the failures identified by the Council and in this investigation.

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Final decision

  1. The Council accepts there was fault causing injustice. I have considered the facts and recommended the Council pay Ms B a higher sum that originally offered to acknowledge that injustice. The Council has agreed to implement the recommendation made. I have now completed my investigation.

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Parts of the complaint that I did not investigate

  1. I have not investigated matters that relate to court proceedings. That was for the Council to do and as set out above, while that investigation was flawed, the process was completed and Ms B was offered the opportunity to repeat stage two of that process.

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Investigator's decision on behalf of the Ombudsman

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