Summary: Mr and Mrs F complained the Council failed to properly consider the complaints they made about the way it had looked after their son, H, who was in care. The Council accepted their complaints at Stage One of the statutory complaints procedure but then failed to proceed to the subsequent stages. This had caused Mr and Mrs F time and trouble in trying to get the Council to follow the appropriate guidance. The Council has agreed to start a statutory Stage Two investigation into their complaints as soon as possible and to make a payment to acknowledge their time and trouble.

The complaint

1. The complainants, whom I shall call Mr and Mrs F, made complaints about the way their son, H, was treated when he went into care. Specifically, they wanted to understand why there was a delay before they could have unsupervised contact, how his education had been decided upon and arranged, the lack of address disclosure and notice given before he moved and not having weekly updates. The Council investigated some of their complaints at Stage One of the statutory complaints procedure but then failed to go to Stage Two. This has caused Mr and Mrs F significant time and trouble in chasing up the Council. They wanted the Council to do a Stage Two investigation into their complaint as soon as possible.

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The Ombudsman’s role and powers

2. 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) In this case, I am exercising discretion to consider the matters raised in Mr and Mrs F’s original complaint letter to the Council on 30 August 2019, which has subsequently been extended.
3. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
4. 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)
5. 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

6. I considered the information submitted by Mr and Mrs F and spoke to them on the telephone. I have referred to relevant guidance, which supports the Children Act 1989 and subsequent Acts. I sent both the Council and Mr and Mrs F a copy of my draft decision to take any comments they made into account before issuing a decision.

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What I found

Law and guidance

Getting the best from complaints (2006)

7. The statutory guidance, ‘Getting the best from complaints’, sets out which of a council’s children’s social care functions can be considered under the statutory complaints procedure. The statutory complaints procedure has three stages; a Stage One (which is normally a response by a manager), Stage Two (involving an investigating officer and an independent person) and Stage Three. When a complaint is accepted at Stage One, it should normally complete all three stages within the timescale set out in the guidance. Generally, assessments and services provided in the following areas should be considered under the procedure:
1. Child in need
2. Looked after children
3. Special Guardianship support
4. Post-adoption support
8. The guidance allows councils to use their discretion to consider all the elements of complaint in a single investigation, even if part of the complaint does not fall within the statutory complaints procedure. Which procedure a council chooses will depend on the nature of the complaint and where the substantive concerns lie.
9. If the person complaining is one of those listed under ‘Who may complain?’ in the guidance (including parents, special guardians, foster carers and adopters), they can make a complaint in their own right and do not require the child’s consent to do so. The Council may need to be cautious about sharing information about the child, but there is no restriction on an independent investigator accessing the child’s records to investigate a complaint from a qualifying person.
10. The decision about progressing to Stage Two lies with the complainant, and not the Council. There is no provision in the regulations or the guidance to refuse a Stage Two complaint because the Stage One complaint was upheld, or because the council thinks there is no substance to the complaint.

This complaint

11. Mr and Mrs F made complaints relating to H and the Council’s treatment of him on 30 August 2019. They were unhappy with the outcomes of that complaint.
12. I have a number of Stage One responses (received from the Council) sent to Mr and Mrs F on 25 February 2020, 20 August 2020 and 28 August 2020. On 5 January 2021, Mr and Mrs F set out their outstanding complaints in a further letter.
13. The Council, at one point, said it would carry out a Stage Two investigation (as highlighted in the 5 January letter) but did not do so.
14. On 7 January 2021, the Council said it had considered all their complaints. However, there is no evidence it had considered them at Stage Two, which is what Mr and Mrs F wanted the Council to do. I only have one record of a Stage Two investigation, which took place in 2017.
15. The Council suggested Mr and Mrs F should come to us even though it had not completed the statutory complaints procedure. Mr and Mrs F have been clear with the Council that they wish to proceed to Stage Two. The Council’s failure to follow the statutory complaints procedure is fault. Mr and Mrs F have been put to time and trouble in getting the Council to look at the outstanding matters. As an outcome, Mr and Mrs F believe the Council should be asked to consider their complaints about H at Stage Two and I agree.
16. The Council agreed to carry out a Stage Two investigation during the course of our investigation. It also agreed to make a payment to Mr and Mrs F to acknowledge their time and trouble.
17. Given the delays here it is also appropriate for the Council to consider how to track the progress of complaints through the statutory procedure and how it will escalate complaints appropriately to the next stage.

Agreed action

18. For the Council to investigate Mr and Mrs F’s complaints at Stage Two of the statutory complaints procedure. If the Council is concerned that certain issues do not fall into the statutory procedure (but do not wish to include those complaints within a statutory Stage Two) the Council should respond at Stage Two of its corporate procedure. In order to achieve this, the Council should generate a list of complaints relating to H that it will consider through either procedure and share this with Mr and Mrs F. This will ensure there is no delay going forward and that all complaints are properly considered at Stage Two. It will do this within two months of the date of my decision.
19. The Council will make a payment of £200 to acknowledge the time and trouble Mr and Mrs F have been put to in trying to get the Council to consider their complaints at Stage Two within two months of the date of my decision.
20. The Council is asked to tell me how it will ensure it tracks the progress of complaints through the statutory procedure and how it will ensure it escalates complaints appropriately to the next stage. It is asked to do this within three months of the date of my decision.

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Final decision

21. There is evidence of fault causing injustice and a remedy has been agreed.

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Investigator's decision on behalf of the Ombudsman