Summary: Mr X complained the Council failed to move his complaint on to stage two of the children’s statutory complaint procedure. We have found the Council at fault. The Council has now agreed for Mr X’s complaint to be considered at stage two.

The complaint

1. Mr X complained to the Council about not being treated as a former looked after child and the actions of its social care department prior to his 16th birthday. Mr X is complaining about how the Council has handled his complaint. Mr X feels the Council is at fault for not progressing his complaint to stage two of the children’s statutory complaint procedure.

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What I have investigated

2. I have investigated whether the Council has correctly considered Mr X’s complaint. I have not investigated the substantive matters Mr X raised with the Council.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
6. 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

7. I spoke to Mr X about his complaint and considered the information he has provided.
8. I have also considered the guidance on the statutory children’s complaint procedure and the Ombudsman’s guide for practitioners about the statutory complaints procedure published in March 2021.
9. Mr X and the Council both responded to a draft decision and I considered their comments before reaching this final decision.

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What I found

Statutory complaints procedure

10. The law sets 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.
11. The guidance says who can complain and what they can complain about. This includes disputed decisions, concerns about the appropriateness of a service, and the application of eligibility criteria.
12. Councils do not need to consider complaints made more than one year after the grounds to complain arose. In these cases, the Complaints Manager should write to advise the complainant their complaint cannot be considered and explaining the reasons why they have adopted this position. However, decisions need to be made on a case-by-case basis and there should generally be a presumption in favour of accepting the complaint unless there is good reason against it.
13. The time limit can be extended at the Council’s discretion if it is still possible to consider the representations effectively and efficiently. Councils may also wish to consider such complaints if it would be unreasonable to expect the complainant to have made the complaint earlier. For example, where the child was not able to make the complaint or did not feel confident in bringing it forward in the year time limit.
14. The first stage of the statutory complaints procedure is local resolution. Councils have up to 20 working days to respond.
15. If a complainant is unhappy with a council’s stage one response, they can ask that it is considered at stage two. The guidance says once a council has accepted a complaint, it must ensure the complaint continues to stage two and three if that is the complainant’s wish.
16. The Ombudsman would normally expect a council and complainant to follow the full complaints procedure. The guidance sets out the circumstances in which a complaint can be referred to the Ombudsman without completing all three stages. This can only happen when the stage two investigation is robust with all complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.
17. We published a guide for practitioners about the statutory complaints procedure in March 2021. This reiterated our expectation that complaints should be progressed through all three stages of the procedure. It said the decision about progressing the complaint lies with the complainant and not the council. Neither the regulations nor the guidance allow a council to refuse to progress a complaint because it believes there is no worthwhile outcome to be achieved.

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What happened

18. Mr X was known to the Council’s social care department from 2009 and entered into a private fostering arrangement in 2015. The Council’s social care department closed Mr X’s case in 2016 shortly before his 16th birthday.
19. The Council did not treat Mr X as a care leaver at this point and it ceased to remain involved in his social care.
20. Mr X used an advocate to complain to the Council in March 2021. Mr X said he felt he did not receive an appropriate service whilst under the watch of the Council’s social care department.
21. The Council wrote back to Mr X in April 2021, addressing each point of his complaint and giving its own view on what had happened in a stage one response. Mr X’s advocate disagreed with the Council’s stage one response and asked it to review this at stage two.
22. The Council wrote back to Mr X and his advocate in July 2021 to decline the request for a stage two response. The Council explained it has discretion on whether to investigate complaints about events that took place more than 12 months ago. Due to the length of time that had passed it did not think a stage two complaint would be beneficial.

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My findings

23. Mr X’s complaint to the Council related to the non-delivery of social care services he believes he was entitled to as a child. The law is clear that when a complainant is not happy with a Council’s actions under Section 17 of the Children Act 1989 then it should reply using the statutory children’s complaints procedure.
24. The Council is right in saying it does not have to consider complaints about events that took place more than one year ago. However the guidance also says decisions need to be made on a case-by-case basis and there should generally be a presumption in favour of accepting the complaint unless there is good reason against it.
25. In any event, the Council opted to exercise its discretion to investigate this complaint when it responded to Mr X at stage one. If it intended to treat this complaint as out of time, or outside of the statutory complaints procedure, the Council would have had to write to Mr X to explain this before responding to his complaint points.
26. As the Council provided a stage one response to Mr X, it is Mr X’s right to request the complaint be moved forward to stage two. The law does not allow for the Council to decline this request. The Council was at fault in doing so. This has caused Mr X injustice as was deprived of his right to progress his complaint through the statutory process.
27. I issued a draft decision recommending the Council should accept Mr X’s request for his complaint to be moved to stage two of the statutory complaints procedure.
     

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Agreed action

28. The Council has agreed (within one month of my final decision) to:

• Provide Mr X with a written apology for failing to follow the statutory process;
• Write to Mr X to confirm it will now consider his complaint at stage 2 of the statutory complaints process;
• Provide the complaints team with a copy of this decision and remind them of the need to complete the statutory process once started.

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Final decision

29. I found the Council at fault as it did not progress Mr X’s complaint through the statutory children’s complaint process. The Council has now agreed to do so. I consider this a proportionate way of putting right the injustice caused to Mr X and have completed my investigation on this basis.

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Parts of the complaint that I did not investigate

30. I did not investigate the substantive matters Mr X complained about because the Council has not yet properly considered them. If Mr X remains unhappy at the conclusion of the statutory procedure he can complain to us again.

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Investigator's decision on behalf of the Ombudsman