The Ombudsman's final decision:
Summary: Mr and Mrs X complained the Council did not complete its stage two children’s complaint investigation in line with statutory timescales. They also complained about the Council’s decision not to disclose parts of the stage two investigation report to them. I have ended our investigation into this complaint. There was delay completing the stage two investigation, but it did not cause significant enough injustice to warrant further investigation. If they are dissatisfied with the outcome or decisions taken as part of the stage two investigation, they can escalate the complaint to stage three of the statutory procedure. In addition, only a court can resolve a dispute about mental capacity or best interest decisions.
- Mr and Mrs X complained the Council did not complete its stage 2 investigation of their complaint in line with the timescales set out in the Children’s Statutory Complaints Procedure. They also complained about the Council’s decision not to disclose parts of the stage 2 investigation report to them.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
- any injustice is not significant enough to justify our involvement, or
- we could not add to any previous investigation by the organisation, or
- further investigation would not lead to a different outcome, or
- we cannot achieve the outcome someone wants, or
- there is another body better placed to consider this complaint, or
- it would be reasonable for the person to ask for an organisation review or appeal.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
- I read Mr and Mrs X’s complaint and spoke with Mrs X about it on the phone.
- I spoke to the Council about this complaint and considered documents it provided.
- Mr and Mrs X and the Council had the opportunity to comment on the draft decision. I considered all comments received before making a final decision.
What I found
Children’s statutory complaints procedure
- This 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.
- The children’s statutory complaints procedure involves three stages:
- Stage 1 - Local resolution by the Council.
- Stage 2 – an investigation by an independent investigator who will prepare a detailed report and findings. The investigation is overseen by an independent person to ensure its impartiality. The Council then issues an adjudication letter which sets out its response to the findings. This must be completed within 25 days (with a maximum extension to 65 days).
- Stage 3 – an independent panel. Part of the panel’s role is to consider the adequacy of the stage 2 investigation as well as working to resolve any outstanding issues.
Mental Capacity and best interest decision making
- A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
- The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
- If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.
- A key principle of the Mental Capacity Act 2005 is that any act done for or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.
- Mr and Mrs X complained to us in December 2021 that the Council had delayed completing a stage 2 investigation into their complaint. We upheld the complaint. The Council agreed to complete the stage 2 investigation within 65 working days and make a payment to remedy the injustice caused by the delay.
- Mr and Mrs X complained to us again in March 2022. They said the 65 working day deadline had passed and the Council had still not completed its investigation or sent them the investigation report.
- The Council wrote to them in March 2022. It acknowledged the 65 day deadline had passed. It said it was awaiting further guidance related to consent to share information and once it had received this information, it would send them the complaint response and report.
- The Council told us the investigation had been completed. However, Mr and Mrs X had brought the complaint on behalf of their children, who had since turned 18. It said because of this, it was considering the issue of consent and what information it could share with Mr and Mrs X.
- The Council sent Mr and Mrs X its stage 2 response in April 2022. It apologised that the complaints process had been prolonged. It said the Council had made a best interests’ decision in relation to one of their children that it would not release their personal information as part of the investigation report. It sent them the part of the report related to their other child, who had given their consent to share this information.
- Mr and Mrs X are unhappy with this decision and want the Council to send them the full investigation report.
- There was a month delay issuing the stage 2 complaint response and I accept this delay was frustrating for Mr and Mrs X. However, the issues being considered were complex. The Council wrote to advise them of the delay and the reasons for this. It apologised for the delay when it sent them the stage 2 response in April 2022. I do not consider we could add anything further or that the injustice caused is significant enough to warrant further investigation.
- Mr and Mrs X are unhappy with the decision not to release parts of the stage 2 report to them. This decision was made as part of the investigation process and so they have the right to request the Council escalates the complaint to stage 3 of the statutory complaints procedure for review by an independent panel. They can also request a stage 3 review for any other areas of the complaint where they remain dissatisfied.
- If Mr and Mrs X disagree with the mental capacity or best interest decisions made in relation to their child, they should first raise this with the Council. If there is ongoing disagreement about this, this is best resolved through the courts. Only the Court of Protection can resolve a dispute about whether a person has capacity to make a decision and what is in a person’s best interests.
- I have ended my investigation. The delay issuing the stage 2 response did not cause significant enough injustice to warrant further investigation, Mr and Mrs X can request a stage 3 review of their complaint if they are dissatisfied with the Council’s decisions and only the courts can resolve disputes about mental capacity and best interest decisions.
Investigator's decision on behalf of the Ombudsman