Summary: Mr G complained the Council refused to respond to his complaint at the second stage of the Children Act complaints process and would not tell him the reasons for its decision. The Council has now agreed to resume the complaints process.

The complaint

1. Mr G complains about the care of his grandson, B, who is a ‘looked after child’. In particular, Mr G complains about:
• arrangements for family contact;
• lack of family involvement in care planning, including a court application;
• B’s placement on a holiday caravan park;
• a subsequent residential placement where B was cared for by a pool of over 40 different carers;
• lack of activities or contact with other young people at B’s latest placement;
• delays arranging medical and optician appointments;
• lack of formal education.
2. The Council refused to consider Mr G’s complaint at the second stage of the Children Act complaints process.

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What I have investigated

3. I have considered the Council’s refusal to consider Mr G’s complaint at the second stage of the Children Act complaints process.

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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 have considered:
• information provided by Mr G; and
• information provided by the Council.
7. I invited Mr G and the Council to comment on my draft decision.

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What I found

8. Mr G’s grandson is an older teenager. He is a ‘looked after child’. The Council shares parental responsibility with his parents and provides his accommodation and care. B has lived in residential placements often a considerable distance from home.
9. The Council responded to Mr G’s complaint about contact on 23 September 2021.
10. The Council’s response was brief. The Council said it had investigated Mr G’s complaint at the first stage of the Children Act complaints process. The Council did not believe it had been at fault, although it did say B stayed longer than planned in an unsuitable placement and offered its apologies.
11. Mr G was unhappy with the Council’s response. On 28 September 2021, he asked the Council to consider his complaint at the second stage of the Children Act complaints process. He expanded on his concerns and said he would be happy to provide more details.
12. In March 2022, the Council wrote to Mr G to say it would not respond to his complaint and was ‘not in a position’ to give a reason for its decision. The Council suggested Mr G contact the Ombudsman if he was dissatisfied.
13. Mr G complained to the Ombudsman.

Our involvement

14. We contacted the Council to ask why it had not responded to Mr G’s complaint.
15. Noting that Mr G was B’s grandfather, we also asked whether he had consent from B or someone with parental responsibility for B to enable us to consider his complaint. Mr G provided signed consent from his son, B’s father, to make the complaint on his behalf.
16. We sent the Council a copy of the signed consent from B’s father. We referred the Council to decisions and guidance on our website about consent and the Children Act complaints process. We asked the Council to reconsider its position.
17. Again, the Council declined to respond to Mr G’s complaint.
18. We asked whether we could tell Mr G the reasons the Council gave for its decision not to investigate his complaint. The Council declined our request.
19. At this point, we wrote to the Council to say that we were unable to reconcile the Council’s position on the matter with the legislation, regulations and published guidance concerning the Children Act complaints process so we were beginning a formal investigation. We made enquiries and invited the Council to explain how it had reached its decisions.
20. The Council explained why it decided not to respond to Mr G’s complaint and not to tell him why it would not respond. Again, the Council asked us not to tell Mr G the reasons. In any event, the Council said it considered the complaint to have been ‘resolved’ at stage one and did not see the purpose of responding at stage two.

The Children Act complaints process

21. The Children Act complaints process is a formal procedure, set out in law, which councils must follow to investigate certain types of complaint. These include complaints by looked after children, or their parents, about care and accommodation provided by the Council. (Children Act 1989, section 26(3))
22. Regulations set out in detail the procedures the Council must follow. (Children Act 1989 Representatives Procedure (England) Regulations 2006)
23. The Secretary of State has also issued statutory guidance. (Getting the best from complaints. Social Care Complaints and Representations for Children, Young People and Others. Department for Education and Skills, 2006)
24. The Children Act complaints process involves:
• a written response from the Council (Stage 1);
• the appointment of an independent investigator to prepare a report (Stage 2); and, if the person making the complaint requests
• an independent panel to consider their representations (Stage 3).

Consideration

25. We have established that Mr G is complaining on behalf of his son, B’s father, about B’s care.
26. By ‘shutting down’ the complaint and not engaging with Mr G, the Council missed an opportunity to establish this important detail. This was fault.
27. The Council has not provided any reasons why Mr G should not represent his son, B’s father, in the complaints process.
28. The council has a legal obligation to investigate complaints made by parents about children’s services.
29. The reasons given by the Council do not justify its decision not to fulfil its legal obligation to investigate Mr G’s complaint now we have established he is complaining on behalf of his son, B’s father. The Council provided no evidence to support the reasons it gave.
30. The Council asked us not to tell Mr G the reasons it decided not respond to his complaint. It provided no evidence to justify its request. This, too, was wrong.
31. The Council says it considers the complaint to have been resolved at stage one and does not see the purpose of a stage two investigation. This, too, is wrong.
32. Mr G told the Council he was unhappy with the stage one response and willing to explain why he remained dissatisfied. It is for the complainant, not the Council, to decide whether to proceed to stages two and three. Stage one is an ‘internal’ response. Stages two and three involve independent scrutiny.
33. I find the Council is at fault for refusing to consider Mr G’s complaint at the second stage of the Children Act complaints process.
34. The Council took more than five months to tell Mr G it would not consider his complaint at stage 2. This is an unreasonable delay.

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Agreed action

35. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
36. I recommended the Council makes the necessary arrangements for an independent investigation of Mr G’s complaint at the second stage of the Children Act complaints process. Mr G will then have an opportunity to meet with the independent investigator and explain the family’s concerns about B’s care.
37. I recommended the Council apologises to Mr G for the delay in responding to his complaint.
38. I recommended the Council takes these actions within one week of my final decision.
39. I also recommended the Council considers explaining to Mr G why it mistakenly decided not to respond to his complaint. Mr G is entitled to an explanation and the explanation should come directly from the Council.
40. I recommended the Council review its arrangements for Children Act complaint handling, and those of any agencies the Council uses to carry out investigations on its behalf, to ensure they comply with the law, regulations and statutory guidance.
41. I recommended the Council takes these actions within one month of my final decision.
42. The Council accepted my recommendations.

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Final decision

43. I have ended my investigation as the Council accepted my recommendations.

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Parts of the complaint that I did not investigate

44. I have not investigated Mr G’s complaints about B’s care. The Council will respond under the Children Act complaints process first.
45. If Mr G remains dissatisfied once the Council has completed all three stages of the Children Act complaints process, he can complain to the Ombudsman again.

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Investigator's decision on behalf of the Ombudsman