Summary: The Council was at fault when it refused to escalate Mrs X’s complaints to stage 2 of the statutory children’s complaints procedures, after considering them at stage 1. It has agreed to start the stage 2 investigation without delay and make service improvements to prevent a reoccurrence of the faults identified.

The complaint

1. Mrs X complains the Council failed to investigate her complaints under the children’s statutory complaints procedure.
2. Mrs X says that as a result, she has been caused distress and frustration and her child remains in an unsuitable foster placement.

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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. 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

6. I considered Mrs X’s view of her complaint.
7. I considered the complaints correspondence and emails between Mrs X and the Council.
8. I considered the relevant law, the children’s complaints procedure statutory guidance - Children's social care: getting the best from complaints, and our Guidance for practitioners on the children’s statutory complaints process .
9. I wrote to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The children’s statutory complaints procedure

10. There is a formal procedure, set out in law, which councils must follow to investigate certain complaints about children’s services. The procedure aims to ensure concerns are resolved swiftly and, wherever possible, by the people who provide the service locally.
11. Statutory guidance (the Guidance) provides details of what may form the subject of a complaint under this procedure. This includes all council functions within Part 3 of the Children’s Act 1989, which sets out the services councils must provide for children and their families in their area. The Guidance says a complaint may arise because of many things, including an unwelcome or disputed decision, concerns about the appropriateness or quality of a service or the impact on a child or young person of the application of a council policy.
12. Specific people can complain on behalf of a child under the statutory procedures, including the child’s parents.
13. The children’s statutory complaints procedure involves three stages:
• Stage 1 - Local resolution by the council;
• Stage 2 – an investigation by an independent investigating officer not involved in the service; and
• Stage 3 – an independent panel to consider any outstanding issues.
14. Where a complaint is accepted at stage 1, the council is obliged to ensure the complaint proceeds to stages 2 and 3 if the complainant requests this.

What happened

15. Mr and Mrs X have a child who the Council placed with foster carers. In February 2021, the Council received a complaint from Mr X who complained the Council:
• acted with a lack of care placing his child at a high risk of catching COVID-19;
• failed to respond to his concerns and requests for updates on his child’s wellbeing when the carer tested positive for COVID-19; and
• failed to respond to his requests relating to his child after the carer tested positive.
16. Mr X listed a number of actions he wanted the Council to take which included returning their child either to their care or to another placement.
17. On 5 March, the Council responded to Mr X at stage 1 of the statutory children’s complaint procedures. It partially upheld some of his complaints. At the end of the letter the Council officer who dealt with the complaint asked Mr X to contact them if he wanted further information. It did not tell Mr X how to escalate his complaint to the next stage of the statutory children’s complaints procedure.
18. On 2 April, Mr X submitted a stage 2 request. The Council responded and said statutory stage 2 investigations were on hold because of the pandemic. It suggested holding a meeting with Mr X to discuss his concerns.
19. Mr X was unhappy with the suggestion of a meeting and emailed asking for the name of the relevant director. Mr X asked the director to review his complaint.
20. The director responded in May to suggest a meeting with a senior member of the children’s department to discuss Mr X’s complaint.
21. The Council heard nothing further until August when Mrs X got in contact. Mr X had died unexpectedly, and she wished to continue the complaint he had started.
22. The Council responded and asked that she clarify her complaints and the outcomes she wanted because of the length of time that had passed since Mr X raised the initial complaint.
23. A number of emails passed between Mrs X and the Council, with the Council asking for details of Mrs X’s complaint and Mrs X reiterating that she was continuing Mr X’s complaint and so the Council already had the details. The Council again suggested a meeting with Mrs X.
24. Mrs X complained to the Ombudsman. We asked the Council to pay Mrs X £100 in recognition of the delays and to carry out a stage 2 investigation. The Council agreed to pay £100. In response to our request for a stage 2 investigation, the Council said “Unfortunately the outcomes... cannot be achieved via the complaints process. We kindly request that you ask [Mrs X] to provide the full details and the outcomes she desires”.

My findings

25. The issues Mr X complained about fell under the statutory children’s complaint procedures. The Council considered them appropriately at stage 1 of the procedures and responded in March 2021. There was no fault in the way the Council responded to each of Mr X’s complaints. But it failed to inform him of his right to escalate his complaints to stage 2 of the statutory procedures. This was fault.
26. However, this did not cause Mr X an injustice because he was aware he could escalate his complaint and did so.
27. Following this request, the Council offered to meet him. However, Mr X then died before the meeting could be held, which brought a halt to events for some months.
28. In August, Mrs X informed the Council she wished to proceed with the complaint. Although the Council already had the details, it asked Mrs X to provide further information. When Mrs X made it clear the details of the complaint remained the same, the Council offered to meet with her, instead of making arrangements to start a stage 2 investigation. This was fault and caused Mrs X frustration because she felt the Council was not listening to her. It also caused her unnecessary time and trouble because she had to complain to the Ombudsman.
29. When we asked the Council to consider Mrs X’s complaint at stage 2, it refused on the basis that it could not achieve the outcomes she wanted.
30. The guidance is clear that when a complaint has been considered under stage 1 of the statutory procedures, the Council has a duty to consider it under stage 2 and 3 if that is what the complainant wishes. Whether the stated outcomes are achievable or not is immaterial. The basis on which the Council made its decision therefore was flawed and is fault.
31. The Council asked the Ombudsman to provide it with information about Mrs X’s complaint and outcomes. It is not the role of the Ombudsman to do this. Rather, this should form part of the Council’s complaints procedures.

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Agreed actions

32. Within one month of the date of the final decision the Council has agreed to:
• pay Mrs X £100 to remedy the frustration and time and trouble the Council caused her;
• start a stage 2 investigation into the matters complained of by Mr and Mrs X and complete this in line with the statutory timescales. It should progress the complaint to stage 3 following this, if this is Mrs X’s wish; and
• remind relevant staff of the Council’s obligations to escalate complaints to stages 2 and 3 of the statutory children's complaints procedures, if that is the complainant’s wishes.

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Final decision

33. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman