Summary: Ms C complained that the Council refused to progress her complaint about children’s services to a stage three review panel against the requirements of the law and guidance. It also delayed in completing stage two of the procedure. On the evidence available we found the Council was at fault for not progressing the complaint to stage three, as the criteria for early referral to the Ombudsman had not been met. The Council has agreed to complete stage three now and pay Ms C £200 for the delay in completing stage two.

The complaint

1. Ms C complained that South Gloucestershire Council (the Council) refused to progress her complaint to a stage three review panel against the requirements of the law and guidance. The Council also delayed in completing stage two of the complaints procedure This has caused her distress, frustration and time and trouble in pursuing the matter with us.

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The Ombudsman’s role and powers

2. 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

3. I have considered the complaint and the documents provided by the complainant, and the Council. I have also considered the guidance on the statutory children’s complaints procedure, 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.
4. Under our information sharing agreement, we will share the final decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Statutory complaints procedure

5. The law sets out a three-stage 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.
6. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
7. If a complainant is not happy 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 at stage one, it must ensure the complaint continues to stages two and three if that is the complainant’s wish.
8. At stage two of the procedure, 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.
9. The guidance says review panels are designed to:
• listen to all parties;
• consider the adequacy of the stage two investigation;
• obtain any further information and advice that may help resolve the complaint to all parties’ satisfaction;
• focus on achieving resolution for the complainant by addressing their clearly defined complaints and desired outcomes;
• reach findings on each of the complaints being reviewed;
• make recommendations that provide practical remedies and creative solutions to complex situations;
• support local solutions where the opportunity for resolution between the complainant and the council exists;
• to identify any consequent injustice to the complainant where complaints are upheld, and to recommend appropriate redress; and
• recommend any service improvements for action by the council.
10. 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:

Where the presenting facts indicate that reasonable, appropriate consideration of the complaint has been undertaken at Stage 2 and that further consideration by the Review Panel would not produce a demonstrably different outcome, the Complaints Manager should discuss with the complainant the possibility of referring the complaint to the Local Government Ombudsman.

Stage 2 must have delivered a very robust report; a complete adjudication, an outcome where all complaints have been upheld (or all significant complaints relating to service delivery in respect of the qualifying individual), and the local authority is providing a clear action plan for delivery and the local authority agrees to meet the majority or all of the desired outcomes presented by the complainant regarding social services functions.

Where this is the case, and the complainant agrees, the Complaints Manager can then approach the Local Government Ombudsman and ask him to consider the complaint directly, without first going through a Review Panel.

11. In the focus report referred to in paragraph three above, the Ombudsman found that a common problem was a refusal by councils to allow complaints to go through all stages of the statutory complaints procedure. In this report, he clarified that the Ombudsman would be unlikely to accept complaints brought early except where the criteria in paragraph 10 had been met.
12. We published a guide for practitioners about the statutory complaints procedure in March 2021. This reiterated our expectation that complaints should progress 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.

What happened

13. Ms C submitted her stage one complaint to the Council on 25 August 2020. The Council replied on 30 September 2020 with a detailed response, including an action plan to address her concerns.
14. Ms C requested to escalate her complaint to stage two on 23 October 2020
15. The stage two investigation started on 14 January 2021, with the Investigating Officer (IO) and Independent person (IP) interviewing Ms C. A statement of complaint was agreed on 9 February 2021. Between February and April 2021, the IO considered the case records and interviewed officers.
16. On 21 June 2021 the IO produced the stage two investigation report and upheld all of Ms C’s complaints.
17. On 27 August 2021 the Council sent its adjudication letter to Ms C. The Council mostly agreed with the findings but changed some findings to partially upheld rather than fully upheld. It agreed to the following actions:
• That the services involved in this case meet to review the whole family situation (and the findings and recommendations in this case) to develop a longer-term plan of support.
• A lead officer to liaise with Ms C and provide oversight should be appointed at this meeting.
• This meeting should take the opportunity to correct the mistakes that Ms C has highlighted in the case records.
• An appreciative enquiry is held jointly between the services held and the findings of this can help inform my next recommendation.
• The Heads of Service for Adult and Children’s Social Care direct a task and finish group to develop a protocol for how family situations are jointly managed in the future and an integrated carers assessment could be included as part of this.
• A key consideration of any future protocol will be the whole family consideration not just of current need but also likely future need. The costs of any possible provision should be considered outside of any ‘whole family case conference’ so that officers are free to consider the most appropriate support options for families.
18. On 3 August 2021 Ms C requested a stage three review panel but did not give any reasons.
19. The Council queried this request as the Council had largely upheld the complaints and was considering the outcomes and recommendations as part of a joint action plan to support the whole family. The Council requested details of what resolution Ms C was seeking which was not covered by the Council’s stage two adjudication
20. On 9 August 2021 Ms C’s advocate replied, saying:

“Ms C’s reason for requesting a stage 3 review is that the Adjudication Officer has not given any firm commitment to any of her desired complaint outcomes (as set out in the stage 2 Statement of Complaint) being delivered. The Adjudication Officer’s response to the stage 2 complaint investigation report makes everything dependent on what would be offered following the whole family review meeting which has been proposed and therefore there is no certainty regarding what, if anything, would ultimately be provided. 

Ms C wishes the stage 3 review to result in the Council making firm commitments in line with her desired complaint outcomes and for the function of a subsequent whole family review meeting to be discussing the implementation of those commitments.”

21. On 12 August 2021 the Council offered Ms C a meeting with the adjudication officer as her concerns appeared to be around the adjudication and action plan rather than the stage two investigation.
22. Mrs C rejected the offer of meeting and restated her wish to go to stage three. The Council replied saying that the initial whole-family review meeting had taken place and the Council would contact Ms C to discuss this. It said she could still agree to the adjudication meeting after that. It was not sure what issues could be taken to stage three.
23. The Council then suggested extending the deadline for stage three to allow the adjudication recommendations of the whole family review to go ahead. It declined to progress the complaint to stage three at that point, saying:

“there was a stage 2 complaint investigation by an independent investigator (IO); the IO has produced a robust report which largely upholds Mrs C’s complaint; the Council has accepted the IO’s findings and produced an action plan in response: work has already commenced on implementing the actions agreed at stage 2, a meeting has been held to start a family review (as recommended by the IO) and contact with Ms C to discuss this. I appreciate that Ms C is concerned that she has not received a concrete response to her complaint outcomes but I do not think that a review panel would be able to produce a demonstrably different outcome. If Ms C is dissatisfied with the approach with regard to her stage 3 request, an option available to her is  to take the matter to the Ombudsman.”

24. Ms C complained to the Ombudsman. She restated her wish for the Council to firmly commit to her desired outcomes as requested at stage two.
25. In October 2021 we asked the Council to remedy the complaint. We noted that the Council had delayed in completing the stage two investigation by around six months and that Ms C was not satisfied with the stage two reply and action plan. We said:

“An investigation is likely to conclude the Council’s failure to meet statutory timeframes is fault which has caused Ms C some time and trouble. I therefore recommend that, within 50 workings days of the date of my final decision, the Council:

• Completes its stage three review panel and response.
• Offers to make a payment to Ms C of £200 to remedy the time and trouble she has gone to pursuing the complaint and to reflect the delay in the Council dealing with her complaint so far.
1. The Council replied in early November 2021. It questioned why we were recommending a payment for delay when Ms C had not complained about delay and the reasons for it included the COVID-19 pandemic and issues relating to the Ms C which arose during the investigation.
2. It also questioned the point of going to stage three:

“There was a robust independent investigation and the Council’s adjudicating officer accepted the investigating officer’s findings and produced an action plan. The Adjudicating Officer has offered to meet with Mrs C to try and alleviate any concerns she has about the action plan - but this has been declined. Mrs C asked for a holistic approach from Adults and Children’s Services to her family’s needs. This was accepted by the AO and the action plan was put in place. I am not sure how a stage three panel will come up with a different outcome.”

Analysis

28. I understand the Council’s reluctance to proceed with a stage three panel given that it has committed to a holistic review to look at the whole family’s needs. It hopes that this process will address Ms C’s desired outcomes, some of which are very specific, and the Council may have a different view on the detail.
29. But Ms C has a statutory right to a stage three review panel and the guidance is very clear that the panel must be held within 30 working days of receipt of the request for a review.
30. I do not agree that all the criteria for early referral of the complaint to us have been met. The stage two report is robust, there is a complete adjudication, all the complaints have been upheld and the Council is providing a clear action plan for delivery. However, the Council has not yet agreed to meet the majority, or all of the desired outcomes and Ms C has not agreed to early referral.
31. The Council believes that no different outcome can be achieved by the Panel. But that is not a criterion for early referral and the guidance makes clear that a Panel can focus on achieving resolution for the complainant by addressing their clearly defined complaints and desired outcomes. Even if there can be no different outcome that is for the Panel to decide as part of stage three of the complaints procedure. So, I have concluded that the Council is at fault for not progressing the complaint to stage three in accordance with the statutory guidance.
32. In respect of the recommended remedy for delay I am aware Ms C did not specifically raise this as part of her complaint. However, we have identified that there has been avoidable delay (even taking into account the COVID-19 pandemic) in the complaints process, which has caused injustice to Ms C and have recommended a remedy for that injustice. The Council has provided some further information in respect of factors which contributed to the delay. While I welcome its approach to a sensitive situation, the Council still took too long to progress the complaint.

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Agreed action

33. In recognition of the injustice caused to Ms C, I recommended the Council, (within one month of my final decision):
• apologises to Ms C for failing to progress the complaint to stage three;
• opens and confirms with Ms C the stage three review panel, with an aim to complete the stage three panel review within three months of the final decision. If this is not possible the Council will advise Ms C and us of the expected timescale for completion;
• pays Ms C £200 for the delay in completing stage two of the procedure; and,
• reminds officers of the criteria under which a complaint can be referred to the Ombudsman without completing stage three.
34. The Council has agreed to my recommendations.

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Final decision

35. I consider this is a proportionate way of putting right the injustice caused to Ms C and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman