Summary: We did not uphold Mr X’s complaint that the Council failed to consider his complaint at stage two of the statutory complaint procedure. The Council was not required to consider the complaint because Mr X told it he intended to take legal action. However, the Council should have told Mr X he could resubmit his complaint within a year of any legal action ending. It agreed to do so.

The complaint

1. Mr X complained about a lack of support for his son who has disabilities. He is unhappy the Council refused to investigate his complaint at stage two of the statutory complaints procedure. He would like the Council to carry out an investigation and provide services to his son.

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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’. 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)
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. I considered the complaint made by Mr X, the documents he provided and the Council’s responses to him.
5. I took account of the Ombudsman’s focus report ‘Are we getting the best from children’s social care complaints?’ published in March 2015.
6. Mr 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

Background

7. The Children Act 1989 Representations Procedure (England) Regulations 2006 set out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, Getting the Best from Complaints, explains councils’ responsibilities in more detail.
8. The guidance says who can complain and what they can complain about. This includes concerns about the appropriateness of a service, unwelcome or disputed decisions, and assessments and reviews.
9. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At stage two, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel.
10. The guidance says once a council has accepted a complaint at stage one, it must ensure the complaint continues to stages two and three if that is the complainant’s wish.
11. However, when a complainant states in writing to the council they are taking or intend to take court proceedings, the council is not required to investigate the matter further if it decides this may prejudice those proceedings. The guidance says if a council decides not to consider the complaint, it must write to the complainant explaining the reasons for its decision. It should also tell the complainant of their right to resubmit the complaint once the proceedings have ended and that they must do this within one year (Getting the Best from Complaints, 7.3.5)

What happened

12. Mr X complained to the Council about a failure to deliver a care package for his son. The Council responded in early December 2020.
13. Mr X immediately asked the Council to investigate his complaint at stage two of the statutory complaint procedure. He also sent a letter before action to the Council and stated his intention to begin court proceedings if the matter was not resolved.
14. The Council wrote to Mr X. It said it had discretion to decide not to investigate complaints where to do so would prejudice court proceedings. It said it would not investigate Mr X’s complaint further and directed him to the Ombudsman. It told Mr X if the situation changed and the claim was withdrawn it would reassess his request for further investigation. It did not tell Mr X he could resubmit his complaint within one year of any proceedings ending.
15. Since complaining to the Ombudsman, Mr X has made an application to the court to make a claim against the Council about his son’s social care support.

Analysis

16. The Council was not at fault for deciding not to investigate Mr X’s complaint. He had stated his intention in writing to take legal action and the law allows the Council to decide not to consider his complaint further where to do so may prejudice that legal action.
17. However, the Council failed to tell Mr X he can resubmit his complaint within one year of any legal proceedings ending. This was fault and led Mr X to believe he would need to withdraw his claim to access the complaint procedure. In response to this investigation, the Council says it will ensure this is made clear in future correspondence and it has amended its standard letters to reflect this.

Agreed action

18. Within four weeks of this decision the Council will write to Mr X to explain he can resubmit his complaint for investigation at stage two of the statutory complaint procedure within one year of the current proceedings ending.

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Final decision

19. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to take the action I have recommended. This appropriately remedies any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman