Summary: Ms X complained the Council failed to listen to concerns she had about the care received by her sister, Ms S, from their parents. Ms X also complained the Council failed to accept her as Ms S’s representative and restricted how she communicated with the Council. The Council was at fault when it failed to properly consider whether Ms X was a suitable representative for Ms S. It has agreed to reconsider the matter in line with the statutory children’s complaints procedures. There was no fault in the communication plan the Council set up with Ms X.

The complaint

1. Ms X complains the Council failed to listen to her concerns and those of her sister, Ms S, in relation to the care Ms S was receiving from both of their parents.
2. Ms X also complains that the Council:
• refused to accept her complaint on behalf of her sister despite receiving consent from her sister to do so; and
• set up a communications plan with her for insufficient cause, which unreasonably restricted her ability to communicate with the Council about concerns for her sister.

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What I have investigated

3. I have investigated the complaints in paragraph 2. I have not investigated the complaint in paragraph 1 because if the Council accepts Ms X as a suitable representative for Ms S, it should investigate them under the statutory children’s complaints procedures.

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The Ombudsman’s role and powers

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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
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 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.

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How I considered this complaint

8. I spoke to Ms X and considered her view of her complaint.
9. I made enquiries of the Council and considered the information it provided. This included Ms S’s case files for the period January to August 2021.
10. I referred to the Statutory Children’s Complaints Procedures.
11. I wrote to Ms X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Statutory children’s complaints procedures

12. The Children Act 1989 and statutory guidance ‘Getting the Best from Complaints’ outlines a statutory complaints process which councils must follow for certain complaints about children’s services.
13. The statutory guidance gives examples of complaints which must be considered under the statutory children’s complaints process, including:
• an unwelcome or disputed decision;
• delay in decision making or provision of services;
• delivery or non-delivery of services including complaints procedures;
• attitude of behaviour of staff;
• the impact on a child or young person of the application of a local authority policy; and
• assessment, care management and review.
14. Any child or young person can complain under the statutory children’s complaints process. The guidance states that where a council receives a complaint from a representative acting on behalf of a child or young person, it should normally confirm where possible that the child or young person is happy for this to happen and the complaint reflects their views.
15. The Council has discretion to decide if the representative is suitable to act in this capacity or has sufficient interest in the child or young person’s welfare.

What happened

16. Ms S is a child in need. She usually lives with either her mother or father. Occasionally she stays with other family members, including Ms X.
17. In April 2021, Ms X complained to the Council about the actions of Children’s Services in relation to her sister, Ms S.
18. The Council responded. The email stated “In order to accept your complaint we would require written consent from your sister that you are acting on her behalf. In addition we would also require your sister’s full name and address and details of the children”.
19. Ms X emailed the Council again and clarified Ms S was child and not the adult. She provided more details about her complaints and stated that Ms S was aware she was making the complaints and at 15 years old understood the implications of doing so. She asked if the Council still needed Ms S’s consent.
20. The Council responded and said it either required Ms S’s consent, or Ms S could submit the complaint herself. It signposted Ms X to a national advocacy service and said if she remained unhappy she should complain to the Ombudsman.
21. At the beginning of May, Ms X emailed the Council and attached a letter from Ms S giving consent for Ms X to complain on her behalf.
22. The Council responded the next day. It said that it was unable to accept Ms X’s complaint on behalf of Ms S. It did not explain how or why it had reached that decision.
23. Ms X complained to the Ombudsman. We asked Ms X to provide us with consent from Ms S to represent her for the complaint. Ms X sent us a consent form signed by Ms S and witnessed by the school nurse. We spoke to the nurse who confirmed Ms S had been happy to sign the consent form and had not been acting under duress.
24. After informing the Council we would investigate Ms X’s complaint, the Council wrote to us and provided the following reasons for not allowing Ms X to act as Ms S’s representative:

“[The] birth mother (who has [parental responsibility]) does not give consent for any information to be shared with the subject’s sister as part of a complaint, which is well within her rights. Therefore, in the absence of consent from the person who holds [parental responsibility] for [Ms S], we would need to encourage the young person to engage with [a national advocacy service] who will assist her in lodging her own complaint as opposed to accepting this through her sister.

25. In relation to the communication plan with Ms X, the Council informed us that:

“A communication plan was put in place due to the level of emails being received, these emails need time to respond to so that [Ms X] received a full and clear picture of the current situation, once weekly email updates allow the [social worker] to give a thorough response and to prevent the same issues being discussed.

[Ms X] has been advised that she can contact safeguarding… and should the allocated social worker be available she will speak to [Ms X] over the phone, however if [social worker] is not available a duty worker would respond to any safeguarding concerns. Family were also provided with the out of hours contact number and the crisis team details should they require support out of hours”.

My findings

26. The Council is not disputing the issues complained about fall under the statutory guidance.
27. When someone complains on behalf of another person, as in this case, the statutory guidance states a council should take steps to:
• determine whether the young person is happy for the representative to complain on their behalf; and
• decide whether the person is suitable to act as a representative or has sufficient interest in the child’s welfare.
28. The Council failed to consider either of these issues. Instead, it refused to allow Ms X to act as a representative based on the fact she did not have parental responsibility and their mother, who did have this, had not given consent for the complaint to be made or for her information to be shared. Neither of these reasons are valid. Therefore, the Council’s decision-making was flawed and this is fault. The Council has now agreed reconsider its decision about Ms X’s suitability as a representative in line with the law and statutory procedures. In doing so it should take into consideration the fact Ms S has provided written consent for Ms X to represent her.
29. When the Council informed Ms X it would not accept her as a representative, it did not give her the reasons why. This too is not in line with the guidance and is fault.
30. Ms S’s mother has not given consent for the complaint to go ahead. Her consent is not required for the Council to investigate. It does mean, however, that if the Council does investigate, the amount of information it will be able to share with Ms X during the investigation is severely restricted. But this would be no different if Ms S had followed the Council’s suggestion that she appoint an advocate from the national advocacy service.

Communications with Ms X

31. There is no fault in the communications plan the Council has with Ms X. It provides her with weekly updates. If there are any matters of urgency relating to safeguarding, all family members are able to contact the Council, including during out of hours.

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Agreed actions

32. Within one month of the date of the final decision, the Council has agreed to reconsider, in line with the children’s statutory complaints procedures, whether Ms X is a suitable representative for Ms S.
33. Within three months of the date of the final decision, the Council has agreed to remind relevant staff of the requirements of the Children Act and Children’s Statutory Complaints Procedures when considering if someone is a suitable representative.

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Final decision

34. There was fault leading to injustice. The Council has accepted my recommendations. As a result, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman