Summary: The complainant (Ms X) complained about the lack of children’s services support for her son (Y) despite his diagnosis of epilepsy and Occupational Therapist’s (OT) recommendations. She also said the Council failed in the way it considered her complaint. We found fault with the Council’s handling of Ms X’s complaint. The Council agreed to apologise, consider Ms X’s complaint at stage three of the children’s statutory complaint procedure and make a time and trouble payment. The Council also agreed some service improvements to improve its complaint handling.

The complaint

1. Ms X complains about the lack of children’s services support for Y despite his diagnosis of epilepsy and OT recommendations.
2. She also says the Council failed in the way it handled her complaint.

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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 a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
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 reviewed all the documents sent by Ms X and the Council.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Legal and administration framework

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 Guidance specifies:
• which complaints should be considered under children’s statutory complaints procedure;
• who can complain;
• process and timescales for considering complaints.
11. All functions of a council under Part three of the Children Act 1989 may be the subject of a complaint including:
• An unwelcome or disputed decision;
• Delay in decision making or provision of services;
• Delivery or non-delivery of services including complaints procedures;
• Application of eligibility and assessment criteria.
12. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
13. 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.
14. 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.

What happened

Background

15. Y has diagnosis of epilepsy. In January 2021 an OT carried out Y’s assessment to find out whether any house adaptations were required.
16. After receiving an OT report and convinced the OT recommended social care support for Y, in the beginning of February Ms X contacted the Council’s OT team, asking for a care assessment. She mentioned specifically out of school social activities as well as an overnight respite.
17. With no response forthcoming, in the second week of July Ms X contacted the Multi-Agency Safeguarding Hub (MASH). She complained about the lack of response to her original request.
18. A few days later the Council told Ms X her son was not eligible for support from the Disability Children and Young People Service (DCYPS) as he did not have severe or profound disability.

Complaint process

19. Ms X complained about this decision at the end of July. The Council recognised Ms X’s complaint and thanked her for providing extra information.
20. Ms X contacted the Council again in the second week of September, expressing her concerns about the Council’s decision refusing to assess Y to establish his eligibility for the children’s social care services.
21. In the beginning of November 2021 the Council’s officers met with Ms X to discuss her concerns. She raised the issues of the Council’s unresponsiveness and delays.
22. When explaining its position the Council said:
• The OT report of January 2021 did not recommend any support, just recorded Ms X’s wishes;
• There is no evidence of Y having any problems at school;
• Y should be supported by local offer as the threshold for the DCYPS support is high;
• Following social care involvement with Ms X’s older son, the Council carried out the whole family assessment and did not find any eligible needs;
• The Council often communicated with Ms X since she lodged her complaint.
23. During the meeting the Council identified a plan of action, which was meant to address some of Ms X’s concerns. The Council did not change its position on Y’s eligibility for social care support, explaining its reasons in a letter sent to Ms X a day after the meeting.
24. In the second part of November Ms X raised her complaint with us. During our initial checks the Council said Ms X’s complaint was closed as the letter which followed the meeting in the beginning of November completed Ms X’s complaint process with the Council.
25. In our correspondence in the beginning of January 2022 we suggested Ms X’s complaint should have been considered as a children’s statutory complaint. We asked the Council to take it to stage two. The Council agreed to do so.
26. A day later the Council said, as Y was not a child in need, looked after by the local authority or a care leaver, the children’s statutory complaint procedure would not be applicable for Ms X’s complaint. Exceptionally, although in the Council’s view stage two of the corporate complaint process had already been concluded, the Council was willing to undertake an Independent Review of the complaint.
27. In February the DCYPS Team Manager wrote a letter to Ms X, referring to her complaint raised in September 2021. The Council did not uphold Ms X’s complaint for the reasons consistent with the previous correspondence.
28. In the Independent Review Officer’s report completed in April, the Team Manager’s letter of February 2022 was referred to as the Council’s stage one response. The report identified four main issues in Ms X’s complaint and upheld her complaint for one of them.
29. In the end of April the Council provided Ms X with the outcome of the review of her complaint. It accepted all the findings of the report, apologised for the delays in the process and directed her to us if she remained dissatisfied with the conclusions of the complaint process.

Analysis

Fault

30. Reviewing the Council’s way of handling Ms X’s complaint I found faults listed below:
• Not following the children’s statutory complaint procedure
1. To find out whether Y met the eligibility criteria for support in view of his epilepsy, the Council would have carried out an assessment under section 17 of the Children Act 1989, irrelevant of the team to which the assessment was allocated. As explained in paragraph 9 of this decision, when looking at any complaints about assessments under part three of the Children Act 1989, including refusal to carry out such assessments, councils should apply the children’s statutory complaint procedure.
2. Although at stage two Ms X’s complaint was reviewed by an Independent Review Officer, the Council still treated it as a corporate complaint and specifically:
1. Failed to comply with the timescales relevant for the children’s statutory complaints;
2. Failed to advise Ms X on her right to ask for a review of her complaint at stage three.
3. Ms X is clearly not satisfied with the results of the stage two complaint process, therefore she should be given an opportunity to have her concerns explored by a Review Panel.
• Confusion within the complaint process
1. Lack of distinction between general correspondence to Ms X and formal responses to her complaint;
2. Confusion around the stages of the complaint process. The Council’s responses to Ms X’s complaint failed to point out the stage of the complaint proceedings they were part of. Although originally the Council told us Ms X’s complaint process was concluded in November 2021, the Team Manager sent another letter to Ms X in February 2022, which was treated as a stage one response by the independent investigator in April.
• Delays - Ms X first complained in July 2021, therefore even under the Council’s Corporate Complaint policy, which specifies 20 working days for a stage one response and 15 days for a stage two response, the Council significantly delayed addressing Ms X’s complaint.

Injustice

31. The Council’s fault caused Ms X injustice by:
• Delaying resolution of her complaint;
• Depriving her of the right to have her complaint considered under the statutory process.

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Agreed action

32. To remedy the injustice caused by the faults identified, we recommend the Council within a month of my final decision complete the following:
• Send a written apology to Ms X;
• Complete a stage three investigation under the children’s statutory complaints procedure;
• Pay Ms X £100 to acknowledge the unnecessary frustration, caused by the Council’s failing to consider her complaint under the statutory children’s complaint procedure and extra time and trouble necessary to pursue her complaint.
33. We also recommend the Council within three months of the final decision:
• Provide its staff dealing with the Children’s Services complaints with the training on the statutory children’s complaint procedure, including eligibility criteria for considering complaints within children statutory complaint procedure as explained in paragraph two of the Statutory Guidance ‘Getting the best out of complaints’;
• Consider introducing a template for the Council’s response letter in stage two of the complaint process, which would include:
1. information on the right to escalate complaints to stage three;
2. timescales for making such request.
• Review the Council’s Corporate Complaint Policy and consider amending paragraph five of the policy to include matters which would be considered under children’s statutory complaints process;
• Consider introducing a Council’s policy on the children’s statutory complaints procedure with much more detailed information than currently on the Council’s website, including as a minimum:
1. Who can raise complaints in these proceedings;
2. What can be complained about;
3. Details of the timescales and process.

The Council should provide us with evidence it has completed the above actions.

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Final decision

34. I uphold this complaint. I found fault in the way the Council handled Ms X’s complaint which caused her injustice. The Council has accepted my recommendations, so this investigation is now at an end.

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Investigator's decision on behalf of the Ombudsman