Summary: Mr and Mrs B complained that the Council did not deal with their complaint about children’s services in respect of their daughter C, within the statutory timescales. We found that the Council delayed in telling Mr and Mrs B that it was including the complaint in a wider stage two investigation and delayed in progressing that investigation. We considered Mr and Mrs B have been caused some frustration and uncertainty. The Council has agreed to pay them £150.

The complaint

1. Mr and Mrs B complained that Derbyshire County Council (the Council) in respect of their complaint about children’s services, first raised on 10 November 2020, failed to consider their complaint within the statutory timescales. This has caused them frustration and inconvenience.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. 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.
5. Mr and Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
6. 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

7. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage two of this procedure, the Council appoints an Investigating Officer 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. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
8. Stage one should be completed in a maximum of 20 working days, stage two in 65 working days and stage three within approximately 50 working days, in total 27 weeks.
9. 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.

What happened

10. Mr and Mrs B had made a number of complaints to the Council about issues relating to the care, support and education of their daughter C. In July 2020 the Council asked a senior officer at another Council (Officer Z) to
• give an independent view on whether there were outstanding complaints which required a response;
• give an independent view on whether the actions of the local authority in relation to investigating complaints over the last two years had been reasonable and appropriate; and
• investigate the most recent complaint submitted on 29 June 2020.
11. Mr and Mrs B complained to the Council on 10 November 2020 about a claim by the Council in a report regarding their daughter C, that Mr and Mrs B had not given their consent for agencies to communicate with each other about the case. They requested evidence to support the Council’s view. I shall refer to this complaint as Complaint M.
12. The Council sent a stage one response to Complaint M on 7 December 2020, providing a note of a telephone call with a social worker in September 2020 saying that Mr and Mrs B had not agreed for social care to do checks with other agencies. The Council did not uphold the complaint. Mr and Mrs B had also added another complaint about the Council closing the case for support for their daughter as a child in need, saying that Mr and Mrs B had declined social care involvement. The Council explained its view that they had declined social care involvement in October 2020 following the outcome of a child protection investigation. The Council said if Mr and Mrs B agreed, the Council could develop a transition plan as C approached 18.
13. On 10 December 2020 Officer Z sent her report about the outstanding complaints to the Council. They had identified three complaints. Complaint M was not included in this report as it was not outstanding at this point and so Officer Z was unaware of it.
14. The Council wrote to Mr and Mrs B on 14 January 2021 to say that Officer Z would be investigating the remaining three complaints they had identified and aimed to complete this by 15 March 2021.
15. On 18 January 2021 Mrs B escalated Complaint M to stage two. The Council acknowledged the request the same day and said the complaints manager would support Mr and Mrs B in taking forward their complaint to stage two.
16. On 29 January 2021 Mr and Mrs B questioned whether the Council had acted lawfully in disclosing information about their complaints and their daughter to Officer Z. The Council’s solicitor responded to this on 19 February 2021.
17. On 12 February 2021 the Council confirmed internally that Officer Z would include Complaint M in their investigation. There is no evidence that the Council informed Mr and Mrs B or Officer Z of this development. On 2 March 2021 Mr and Mrs B contacted the Council to say they had not heard anything further about the stage two complaint. The Council did not respond.
18. On 16 March 2021 Officer Z contacted Mr and Mrs B to check she had their consent to proceed with her investigation. Mrs B replied:

“You should not assume that we are content for you to proceed with your investigation and, for the avoidance of doubt, you should not assume that we are not content. I will be in touch in relation to your enquiry in due course.”

19. Mr B says at this point they did not consider they had been given sufficient time to reach a decision on the issue of Officer Z’s investigation. On 1 April 2021 they asked Officer Z to provide the letters of instruction she had received from the Council and made a subject access request of her Council. Officer Z forwarded this to the Information Governance Department in her Council on 9 April 2021.
20. Given the lack of clear consent from Mr and Mrs B to proceed with the consolidated investigation, Officer Z stood down as the investigating officer. The Council appointed another member of its staff, Officer Y, to complete a stage two investigation into all the outstanding complaints. Officer Y contacted Mr and Mrs B in May 2021 and sent an update on his scoping work in June 2021. He asked for confirmation by 30 June 2021 whether there were any additional complaints to investigate beyond the three identified by Officer Z.
21. Mr and Mrs B replied referring to two additional complaints, including Complaint M but did not give specific details. Officer Y replied asking for details of the other complaints. Mr and Mrs B did not provide any further information. On 5 August 2021 Officer Y contacted Mr and Mrs B again to say that he had identified the two further outstanding complaints (including Complaint M) and confirmed he had added these to the existing three in the form of a scoping document. Once this document had been agreed he would investigate all of them at stage two of the statutory complaints process (as the most recent complaints related to children’s services). He confirmed an independent person had also been appointed.
22. Mr and Mrs B sent comments on the scoping document and Officer Y made amendments to it, returning a copy to Mr and Mrs B on 1 September 2021, asking for a response by 10 October 2021. On 15 October 2021 Mrs B replied saying she did not recognise the scoping document.
23. The Council considered the five complaints at stage two of the procedure including Complaint M and responded to Mr and Mrs B in January 2022.

Analysis

24. The Council responded to Mr and Mrs B’s stage one complaint within the required time limit. It acknowledged the stage two request promptly on the day it was made but did not confirm the complaint was being considered at stage two of the procedure until early August 2021.
25. I accept the situation was complicated by other complaints Mr and Mrs B had made and the length of time these had continued. Mr and Mrs B argue that the Council should not have included Complaint M in the already lengthy investigation of the other complaints and should have carried out a separate investigation. I disagree with this view and consider the attempt to consolidate the outstanding complaints into one stage two investigation was a pragmatic approach. However, it was not implemented in a timely or efficient manner, and this was fault.
26. Officer Z’s investigation of the other complaints should have been completed by 15 March 2021, but this was not achieved. I can see that it was partly delayed by Mr and Mrs B’s questioning of the lawfulness of instructing Officer Z. This was resolved by 19 February 2021, but Officer Z did not contact Mr and Mrs B again until 16 March 2021 to ensure she had their consent to continue. This delay was fault.
27. By this point, the Council had decided to include Complaint M in this process. However, it did not inform Officer Z of this decision before she stood down in April 2021, nor Officer Y when he took over the investigation in May 2021 nor Mr and Mrs B until August 2021. This was fault which meant Mr and Mrs B were not aware that the Council was going to investigate the complaint for seven months and the complaint was not investigated for seven months.
28. Mr and Mrs B partially contributed to the delay in the process by not agreeing to Officer Z carrying out the investigation into older complaints Mr and Mrs B believe this was completely unconnected to the investigation of Complaint M and so irrelevant to the delay in investigating of Complaint M. I disagree. When Mr and Mrs B escalated Complaint M to stage two the Council had already commissioned an independent investigator. I consider it was reasonable for the Council to include Complaint M in this process rather than search for another investigator to carry out a concurrent investigation.
29. Mr and Mrs B say they had not had enough time to consider whether to give consent to Officer Z investigating the three older complaints because she only gave them a short time to agree following her letter of 16 March 2021. However, I Mr and Mrs B had been aware of Officer Z’s involvement in the investigation of the other complaints since January 2021 but had not given their consent for her to continue. During this period, they had questioned the lawfulness of commissioning her as an investigator and in early April 2021 asked for the documents showing how and why the Council had commissioned her. They then made a subject access request for these details. While I accept there was delay by the Council and Officer Z as detailed above, I consider Mr and Mrs B’s lack of consent and questioning of the process, meant a new investigator had to take over the process.
30. Since August 2021 the Council has made significant efforts to progress the consolidated stage two investigation and to engage Mr and Mrs B. It has now completed this process
31. But the failure for seven months to either investigate Complaint M at stage two or to inform Mr and Mrs B of its intention to do so, has caused Mr and Mrs B some frustration and uncertainty.

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Agreed action

32. To recognise the injustice caused to Mr and Mrs B, I recommended the Council within one month of the date of my final decision, pays Mr and Mrs B £150.
33. The Council has agreed to my recommendation

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Final decision

34. I consider this is a proportionate way of putting right the injustice caused to Mr and Mrs B and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman