Summary: Mr and Mrs X complained about the Council’s handling of their complaint under the children’s statutory complaints procedure. They said the Council upheld the majority of their complaints at stage two but had not offered a suitable remedy. The Council was at fault. The remedy the Council offered for the upheld parts of the complaint was insufficient. During our investigation, it revised its position and has now offered Mr and Mrs X £2500 as a remedy for the injustice caused. This is an appropriate offer and in line with our guidance on remedies. It will now make this offer to Mr and Mrs X.

The complaint

1. Mr and Mrs X complained about the Council’s handling of an investigation following allegations of historic sexual abuse. They said the Council upheld the majority of their complaints at stage two of the children’s statutory complaints procedure, but had not offered a suitable remedy. They want the Council to provide an appropriate financial remedy for:
1. Mrs X’s loss of earnings caused by ill health;
2. the failure to provide Mrs X with appropriate support as an employee; and
3. the distress caused by other upheld points of complaint.
2. They also want the Council to improve its services.

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What I have and have not investigated

3. I have investigated points 1b) and 1c). I have not investigated point 1a) as I cannot make a direct causal link between the Council’s actions, Mrs X’s ill health and any associated loss of earnings. Mr and Mrs X would need to go to court if they wanted to make a claim against the Council for this.

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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. If we are satisfied with an organisation’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

6. I read Mr and Mrs X’s complaint and spoke with them about it on the phone.
7. I made enquiries of the Council and considered information it sent me.
8. Mr and Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments received before reaching a final decision.

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What I found

Background information

The Children’s statutory complaints procedure

9. 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.
10. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
11. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
12. 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. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.

Early referral to the Ombudsman

13. Councils should progress a complaint through at all three stages of the procedure, if this is the complainant’s wish. However, If the council is in agreement and certain conditions are met, the complainant can make an early referral to us. The guidance says a council can only consider this option once the stage two investigation has concluded and the complainant has received the council’s final position on the complaints. The conditions include that the stage two investigation must have delivered:
• a very robust report;
• a complete adjudication; and
• an outcome where all complaints have been upheld (or all significant complaints relating to service delivery).
14. We will consider the individual circumstances and whether the referral meets the conditions set out in the statutory guidance, before deciding whether to accept the complaint.

Our Guidance on Remedies

15. Our guidance says we recommend redress which is proportionate, appropriate and reasonable based on the facts of the case. We encourage bodies in our jurisdiction to offer remedies. We will take account of any offer made and will not interfere if we consider a proposal satisfactorily addresses the injustice caused.

What happened

16. In 2020, Mr and Mrs X were foster carers employed by the Council.
17. Mr and Mrs X complained to the Council in April 2020. They complained about how the Council had handled allegations against Mr X of historical sexual abuse. They asked the Council to proceed straight to stage two of the children’s statutory procedure due to the complex nature of their complaint.
18. The Council acknowledged their complaint in May 2020. It said there would be a delay responding due to the COVID-19 pandemic.
19. The Council investigated their complaint under the children’s statutory complaints procedure. The Council said Mr and Mrs X agreed the complaint statement in May 2020 but asked for an additional point of complaint to be added in October 2020.
20. It provided a stage two complaint response in February 2021. It apologised for the delay completing the investigation. It upheld the majority of their complaint including:
• it had taken too long to conclude its investigation and provide Mr and Mrs X with an outcome;
• its communication could have been more effective;
• it had failed to acknowledge or implement its duty of care towards Mrs X as an employee;
• it had failed to keep proper records so was unable to provide these to Mr and Mrs X when requested; and
• it had delayed reviewing the arrangements for Mr X to see his grandchildren.
21. It apologised for the upheld parts and accepted the way the Council had handled the case did not always meet its expected standards.
22. It said it would consider financial reimbursement for some accommodation costs incurred by Mr and Mrs X. It said it would not consider compensation for Mrs X’s loss of earnings or early retirement and if Mr and Mrs X wanted to pursue this, this would be through a court claim. It also said any compensation for trauma or distress caused by the Council’s actions would need to be through a court claim. It set out actions it was taking to learn from the complaint and improve its services.
23. It told them of their right to request a stage three review if they remained dissatisfied.
24. Mr and Mrs X were unhappy with the response. After discussion with the Council, both parties agreed to bring the complaint to us as an early referral. This was because although the Council upheld most of the complaints, Mr and Mrs X were dissatisfied with the remedy the Council had offered. The Council said it did not accept it should pay Mr and Mrs X compensation for loss of earnings. It said a stage three review would not change its position on this and so could not achieve the outcome Mr and Mrs X were seeking.
25. In response to my enquiries, the Council said it had reviewed its position on a remedy offer for the distress caused by the upheld parts of complaint. It said it now accepted a financial remedy for this was appropriate. It said it would offer Mr and Mrs X a total of £2500 comprised of:
• £250 for the distress caused by delay in complaint handling;
• £2000 for the distress caused by the upheld parts of complaint; and
• £250 for the time and trouble taken to raise the complaint.
26. It confirmed Mr and Mrs X had already accepted an offer of reimbursement for accommodation costs.
27. It also provided evidence of actions it had taken to improve its service since Mr and Mrs X’s complaint. This included:
• training for relevant staff in relation to managing allegations;
• training for foster carers about handling allegations made against them, what would happen next and what support was available;
• minutes of meetings where the Council’s handling and investigation of allegations was considered; and
• minutes showing consideration of the issues raised at relevant directorate and partnership meetings.

My findings

28. The statutory guidance sets out the criteria for an early referral to us. I have considered the stage two report and am satisfied it is robust and addresses all parts of Mr and Mrs X’s complaint. The Council upheld most of the complaints and Mr and Mrs X and the Council agreed to bring the complaint to us after the stage two was complete. This case meets the criteria for an early referral.
29. In its stage two response, the Council apologised for the upheld parts of complaint but said it could not recommend a financial remedy for trauma and stress and any claim for this should be made through the courts. This position is incorrect. Councils can offer financial remedies for avoidable distress caused by its actions or inaction. The list of faults accepted following the stage two investigation is likely to have caused Mr and Mrs X significant distress over an extended period.
30. There was also delay completing the stage two investigation. Statutory guidelines say the Council should have completed the stage two investigation within 13 weeks, which would have been end of July 2020. It did not provide its response until February 2021. Although I accept that the onset of the COVID-19 pandemic and the addition of a further point of complaint in October 2020 as contributory factors for delay, the response was delayed by six months. This is a significant delay which is likely to have caused Mr and Mrs X frustration and distress. The apology issued by the Council is insufficient to remedy the injustice caused.
31. In response to our enquiries, the Council revised its position and has offered Mr and Mrs X a total of £2500 for avoidable distress. Given the circumstances of this case and considering our guidance on remedies, this is an appropriate offer. The Council should now make this offer directly to Mr and Mrs X.
32. The evidence provided shows the Council has taken actions to learn from the complaint and improve its services. I am satisfied the actions completed are appropriate to help prevent recurrence of the identified faults.

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Agreed action

33. Within one month of the final decision, the Council will write to Mr and Mrs X with its offer of £2500 as remedy for the distress caused and pay this to them within the month if they accept the offer.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed my investigation. I have found fault and made a recommendation to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman