The Ombudsman's final decision:
Summary: We upheld Miss X’s complaint because the Council did not properly consider whether it should investigate her late complaint. The Council agreed to reconsider whether it will investigate her complaint and provide Miss X with an explanation for its decision.
- Miss X, who is 17, complains the Council threatened to remove her from her mother’s care when she was 12. She also says the Council has told her she will remain subject to a child protection plan until she is 18. Miss X says this has caused her distress. She would like officers to be disciplined and to receive compensation. She would also like the Council to end the child protection plan.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have considered the complaint made by Miss X and the documents she provided.
- I considered the Council’s comments about the complaint and the documents it provided in response to our enquiries.
- I took account of the Ombudsman’s focus report ‘Are we getting the best from children’s social care complaints?’ published in March 2015 and guide for practitioners about the statutory complaints procedure published in March 2021.
- Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).
What I found
- The Children Act 1989 says councils have a duty to safeguard and promote the welfare of children within their area who are in need. Some children may be made subject of a child protection plan, where there are concerns they are suffering or likely to suffer significant harm.
- The law and regulations also set out a three-stage statutory procedure for councils to follow when looking at most complaints about children’s social care services. The accompanying statutory guidance, Getting the Best from Complaints, explains councils’ responsibilities in more detail. The Ombudsman would normally expect a council and complainant to follow the full complaint procedure.
- The guidance says councils do not need to consider complaints made more than one year after the grounds to make the complaint arose. However, it says decisions should be made on a case-by-case basis and there should generally be a presumption in favour of accepting the complaint unless there is a good reason not to.
- The guidance says councils have discretion to extend the time limit for making a complaint if it is still possible to investigate effectively and efficiently. Councils may also wish to consider complaints if it would be unreasonable to expect the complainant to have made the complaint sooner. For example, a child may not be able to make a complaint or feel confident to do so within the year time limit.
- The guidance sets out possible grounds for accepting a complaint made after one year, including:
- Genuine issues of vulnerability.
- The council believes there is still benefit to the complainant in proceeding.
- Information and individuals involved at the time are likely to be available to enable an effective and fair investigation.
- Miss X is 17 years old. She lives with her mother.
- According to a letter written by Miss X’s school in November 2019, the Council’s social care department contacted the school in October 2017 asking that Miss X was not sent home, due to concerns about her mother’s mental health. The letter explained that later that day, following further discussions between the Council, Miss X and her mother, Miss X was able to return home. The school said Miss X continued to express her upset at these events for some months afterwards and her mother reported she was still feeling the impact over two years later.
- Miss X complained to the Council in April 2021. She was unhappy about the Council’s actions in 2017. She also wanted to complain about the Council “placing me on the child protection register till I am 18”. The Council told Miss X it would not investigate her complaint because it was about events which occurred more than 12 months ago.
- Miss X complained to the Ombudsman. We asked the Council whether it would investigate Miss X’s more recent concerns about a lack of support and remaining subject to a child protection plan. The Council said this complaint was considered out of time under its corporate procedures.
- In response to my enquiries, the Council confirmed Miss X had never been subject to a child protection plan. The Council carried out a child in need assessment in October 2017 and the case stepped down to Early Help in November, eventually closing in June 2018. The Council had not shared this information with Miss X.
- The Council rejected the complaint on the basis that it was out of time and was also about child protection and therefore did not come under the statutory complaint procedure. However, a simple check of the Council’s records would have showed Miss X was never subject of a child protection plan and the events in 2017 occurred when she was subject of a child in need assessment. The Council could have offered Miss X the reassurance of knowing she was no longer open to social care. It did not do so, and this was fault.
- Complaints about child in need assessments, the behaviour of staff and the impact on a child of the application of council policy are all matters which should be investigated under the statutory complaint procedure.
- As the Council closed Miss X’s case more than 12 months ago, her complaint is late. However, the guidance says councils should be in favour of accepting a late complaint unless there is a good reason not to. When deciding whether to investigate, the Council needs to show it has considered Miss X’s age, any issues of vulnerability, any potential benefit to Miss X of now investigating the complaint, and whether a fair and effective investigation can still take place. It did not do so, and this was fault.
- Within one month of this decision, to remedy the injustice caused, the Council will:
- Write to Miss X to confirm her case is closed and the date on which it closed.
- Reconsider Miss X’s request for her complaint about children’s social care to be investigated. If the Council decides not to investigate, it will show how it has taken account of the statutory guidance in reaching its decision and will write to Miss X explaining the reasons for its decision. It will advise Miss X of her right to reapproach the Ombudsman.
- I have completed my investigation with a finding of fault for the reasons explained in this statement. Miss X was caused an injustice by the actions of the Council, and it has agreed to take action to remedy that injustice.
Investigator's decision on behalf of the Ombudsman