Summary: Mr and Mrs B complained the Council failed to ensure an adequate investigation into a complaint they made in December 2017. We upheld the complaint finding the Council at fault for a series of delays which prevented the complaint progressing through the statutory complaint procedure for complaints about children’s services. The Council accepted our findings and agreed action, set out at the end of this statement, to remedy the resulting injustice caused to Mr and Mrs B.

The complaint

1. I have called the complainants ‘Mr and Mrs B’. They complain the Council has failed to ensure an adequate investigation into a complaint made in December 2017 which concerned events before and after their adopted son entered foster care.
2. Mr and Mrs B say as a result both they, and their son, have unanswered questions arising from the events complained about. Those events caused distress for them all. They consider events may have turned out differently had their complaint been handled better.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. Before issuing this decision statement I considered:

• Mr and Mrs B’s complaint to the Ombudsman made in April 2022 and any supporting information they provided;
• information provided by the Council in reply to our written enquiries;
• relevant law and Government guidance as referred to in the text below;
• relevant guidance produced by this office as also referred to in the text below.

7. Mr and Mrs B and the Council had a chance to comment on a draft version of this decision statement. I took account of any comments they made, or further evidence provided, before issuing this final decision statement.
8. Under an 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 a final decision with Ofsted in advance of publication on our website.

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What I found

Relevant law & guidance

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. The statutory guidance says that where a complainant submits a complaint ‘orally’, a complaints manager must ensure the complaint and desired outcomes are recorded in writing.
12. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. The statutory guidance says this should be done ‘without delay’. Councils have up to 13 weeks to complete stage two of the process from the date of request.
13. 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.
14. The statutory guidance says attempts at resolving complaints “should not end once a complaint is made”. Instead, councils should make continued efforts at resolution “during consideration of the complaint”. It says that councils can try and find alternative ways to resolve complaints “while any given stage [of the complaint procedure] is ongoing”. Suggestions include carrying out a review of practice.
15. The statutory guidance provides advice to councils on where it may be appropriate to consider offering “financial redress” following a complaint investigation.
16. The guidance also provides advice on where complaint procedures may need to be suspended. This can include where there is a “concurrent investigation under another statutory or internal procedure”. The guidance gives examples such as where the police are investigating a child protection matter that is also subject to a complaint. Or a member of staff faces disciplinary proceedings in connection with events complained about. Separately, the guidance also explains that councils can refuse to consider a complaint if a complainant says they intend to take legal action or if investigating a complaint could prejudice concurrent court proceedings.
17. In 2015 the Ombudsman published a focus report highlighting common failings in the way councils deal with complaints that are within the remit of the children’s statutory procedure. In 2021 further guidance for practitioners was issued setting out our expectations on how statutory complaints should be handled and managed.
18. In our guidance we stressed the decision about progressing a complaint to stage two of the complaint procedure rests with the complainant and not the council. We gave a case study example of where we criticised a council for repeatedly failing to pass a complaint to stage two of the complaint procedure.

Chronology

19. Mr and Mrs B made a complaint to the Council in December 2017. The complaint contained a covering letter which explained Mr and Mrs B felt they had not been adequately supported by the Council in caring for their adopted children; especially their son who had recently moved into foster care. Attached was a detailed statement with 152 numbered paragraphs. The statement made both generalised comments about poor social work practice and highlighted specific examples where Mr and Mrs B considered the Council had been at fault. There was also an additional note appended to the complaint which set out Mr and Mrs B’s dissatisfaction with the process followed by the Council when it arranged a Public Law Outline (PLO) meeting.
20. The Council answered the complaint in June 2018. In between, in May 2018, Mr and Mrs B met with two officers to discuss their complaint. The Council’s reply did not answer each of Mr and Mrs B’s numbered points in their statement. Instead, it sought to group different points into sub-sections and commented on those.
21. Mr and Mrs B replied the day after receipt saying they were unhappy with the reply. They did not consider it answered all their complaint. They said they had understood from their meeting with the Council in May 2018 that it would answer each numbered point.
22. In response, in July 2018 the Council apologised for its misunderstanding. It said it would re-write its response to the complaint giving a response on each point as well as “a response to each overarching group providing a summary of the findings". The Council then issued its revised reply to the complaint at the end of August. Mr and Mrs B found this further response confusing saying it answered fewer points than the letter they received in June 2018 and contradicted that in places.
23. In September 2018 Mr and Mrs B replied to the Council saying they remained dissatisfied. The Council has retained a record of the covering email Mr and Mrs B enclosed with their letter of dissatisfaction, but says it cannot the letter itself.
24. In December 2018 an officer working for the complaints service acknowledged Mr and Mrs B’s wish to escalate their complaint and asked for a meeting. He said this would be “to discuss how best to proceed with the complaint”. The officer added that Mr and Mrs B should not consider this an attempt “to prevent it going further or put any barriers in the way of you doing that”. But he said the Council wanted to know if there was any action it could take to “address and resolve matters” at that time.
25. A meeting followed in January 2019 and the officer wrote to Mr and Mrs B around a week later. The officer enclosed a note which commented on some of the numbered points in Mr and Mrs B’s initial statement of complaint. It suggested that in some cases there could be no merit to any further investigation as it could not add to the reply Mr and Mrs B had previously received. It identified other numbered points as being “discussion points” raised by Mr and Mrs B. In other places the officer suggested Mr and Mrs B may need to provide more detail; for example, in describing that a care plan contained inaccuracies they should say what those inaccuracies were. Mr and Mrs B considered at this point they had already provided detail of what their complaints were about.
26. The Council says that its attempts at this time were intended to be helpful. The officer wanted to set realistic expectations on what further investigation might be undertaken into the complaint. He was also wanting to “maintain a resolution focus and look to alternative dispute resolution approaches”. The Council considers this was in line with its complaint and representations procedure at the time. Although the Council has said that it now takes a different approach. It now says that attempts to resolve complaints should run alongside a complaint procedure and should not therefore delay it.
27. In February 2019 Mr and Mrs B wrote back to the Council. They made comments on the document sent to them by the officer and enclosed a second document setting out points they considered were not addressed in his meeting notes. The officer replied in March 2019 saying Mr and Mrs B’s complaint was now at stage two of the investigation process. But he asked for another meeting to “formally start” the process and to go through the correspondence exchanged over the previous two months.
28. In April 2019 the officer left the Council. A different officer from the complaints service now arranged to meet with Mr and Mrs B along with a manager from the service. That meeting took place in May 2019.
29. The Council’s note of that meeting says there was some general discussion around the background to why Mr and Mrs B complained. Although the discussion also encompassed events after December 2017. The Council recorded Mr and Mrs B remained “very angry” about their treatment by the Council and wanted “proper answers about their complaint”. They have told me at this point they had been continually promised answers to their complaint, but felt they had not received these.
30. The note then recorded that as a ‘way forward’ the Council would carry out a file review. It was proposed a manager who had worked with Mr and Mrs B and their adopted children in the past would carry out this review. He would “work with family to understand the decision made and identify learning”.
31. At the end of June 2019, the Council wrote to Mr and Mrs B saying they had “agreed” to this ‘learning review’. In July 2019 the Council said it was in discussion with the manager about when he could start. Mr and Mrs B received no further update until August 2019 when they asked the Council to update them. At this time, they were told the manager had left the Council but it hoped to retain his services to carry out the review. This was subsequently agreed. Mr and Mrs B say the Council never explained to them that it saw the learning review as an alternative to their complaint proceeding to stage two of the complaint process.
32. The manager met with Mr and Mrs B in December 2019 and had several further meetings with them over the following months. During those meetings there was discussion of each individual point raised in Mr and Mrs B’s complaint and the manager sent copies of his notes to Mr and Mrs B.
33. In June 2020 the Council sent Mr and Mrs B a copy of the learning review outcomes. It says at this point it considered the complaint closed. However, its correspondence did not refer to their complaint.
34. In October 2020 Mr and Mrs B got back in touch with the Council to say they remained dissatisfied. They still did not consider they had received an adequate reply to their complaints. Their email went to an officer in the complaints service who they had communicated with previously who acknowledged their correspondence. The Council says that officer changed position soon afterwards. The Council says in the handover to new complaint officer, Mr and Mrs B’s outstanding correspondence was overlooked.
35. In February 2021 Mr and Mrs B therefore contacted the complaint service again. They said they considered much of their complaint remained outstanding. They enclosed a list, which they implied was incomplete, setting out over twenty points of outstanding dissatisfaction. Next to each item Mr and Mrs B made a request they receive compensation for the Council’s failings.
36. In April 2021 the Council told Mr and Mrs B it had referred this correspondence to its legal services. It says it did this because Mr and Mrs B’s letter of February 2021 raised the question of compensation. The Council therefore queried if it was appropriate to consider Mr and Mrs B’s dissatisfaction via the complaint procedure in these circumstances.
37. The Council’s complaint service comments that it believed its legal services would continue communications with Mr and Mrs B. It said that it did not think it appropriate to write again as to do so may compromise “a concurrent investigation under another statutory or internal procedure”. However, Mr and Mrs B received no contact from legal services.
38. In January 2022 Mr and Mrs B contacted the Council again to seek an update. They received no reply. So, in April 2022, they contacted this office asking us to investigate their complaint.

Findings

Jurisdiction issues

39. The first matter I must consider is whether we can properly investigate Mr and Mrs B’s complaint given that the events covered by the complaint began nearly five years ago. This raises the possibility the complaint is a late complaint. Especially as the last substantive correspondence Mr and Mrs B received which referred to the content of their complaint was in June 2020. This was more than twelve months before their complaint to the Ombudsman.
40. However, I have decided the complaint is not a late complaint. This is because there is no evidence that Mr and Mrs B have ever dropped pursuing their complaint for any significant length of time. This includes after they received the correspondence referred to in June 2020. I find they were led to believe in April 2021 the Council was still considering their correspondence and so were waiting on some further communication which did not arrive. It is this lack of communication from the Council which triggered their contact with this office, and they did not wait more than twelve months to alert us to that.

Findings on the substance of the complaint

41. Turning to the substance of the complaint, I explained above the expectation that when someone complains to the Council about its children’s services they can expect a reply to their complaint in around one month. If they remain dissatisfied and wish to escalate their complaint to stage two of the complaint procedure, then this should last no longer than three months. Allowing some time for a complainant to escalate their complaint between the two stages and for some routine administration on the part of the Council, there is a reasonable expectation the whole process – from making the initial complaint through to receiving a response to the stage two investigation - should take no more than six months.
42. However, in this instance, despite making their initial complaint in December 2017, Mr and Mrs B have not seen their complaint progress to the beginning of the second stage of the procedure. If we discount the time this complaint has been under investigation by this office, that means there has been around four years of delay over and above the reasonable expectation I set out above.
43. In all cases where we find delay, there is no automatic assumption that fault by the Council is to blame for this. But scrutiny of the facts in this case can lead to no other conclusion. I find the Council has been at fault for the following:
1. First, for the long delay in Mr and Mrs B receiving any response to their complaint at stage one of the complaint procedure. I recognise their complaint was lengthy. I also understand that its format may have caused some difficulty for the Council in responding. Because it contained generalised comments as well as specific points which were harder to respond to. So, there may have been good reason why, in this instance, the Council could not respond in 20 working days. But I cannot see why these factors would delay a reply by a further five months. I find no satisfactory explanation for this in the papers I have seen.
2. Second, clearly the reply Mr and Mrs B finally received in June 2018 fell short of their expectations and what they were led to believe following a meeting with officers the previous month. While I have seen no note of the May 2018 meeting the Council tacitly accepted that Mr and Mrs B were led to believe they would receive a reply to each itemised point in their statement. Consequently, the Council had to re-write its response, which added a further two months or so of unnecessary delay.
3. Third, there was a delay of almost three months in the Council acknowledging Mr and Mrs B’s request to escalate their complaint to stage two of the procedure in September 2018. This is not explained in any correspondence I have seen.
4. Fourth, having acknowledged the request for a stage two investigation the Council failed to promptly register it as such and put wheels in motion for it to be investigated. Instead, it suggested it must meet with Mr and Mrs B to discuss their complaint. This was unnecessary. If Mr and Mrs B put their complaint in writing, then there was no need for further discussion to clarify the complaint. The Council put in writing that it was not seeking to prevent Mr and Mrs B’s access to stage two of the complaint procedure, but this was the practical result of this intervention.
5. Fifth, the Council suggests that its actions between December 2018 and December 2019 were consistent with it seeking an alternative approach to remedy the complaint. I consider statutory guidance has always made clear that attempts to resolve a complaint such as carrying out a learning review can be made during a complaint investigation. But they should not lead to a suspension of the complaint procedure. So, the approach adopted by the Council was fundamentally flawed on this point.
6. Sixth, even if we took the view the Council could legitimately have sought to carry out a learning review before advancing the complaint to stage two of the procedure, that process should not have been subject to such delay. It took 12 months between the Council acknowledging the request for the complaint to progress to stage two of the complaint procedure and the learning review beginning. It then took a further six months for the review to complete. This would be unacceptable even without the other flaws in the Council’s handling of this matter.
7. Seventh, the Council’s communications in the intervening period failed to make clear its actions. The correspondence sent to Mr and Mrs B in January 2019 placed an unnecessary barrier in the way of their complaint being investigated. It is part of the role of the Investigating Officer at stage two of the complaint procedure, to go through a complaint with the complainant. They are the ones who can best advise if they think it unlikely one part of a complaint can be effectively investigated or ask for more clarification where needed. But the Council intervened before the complaint reached that stage. Next, in March 2019, the Council said the complaint had been registered at stage two of the process. But when later, it said a learning review had been ‘agreed’ instead, it did not explain that it saw this as an alternative to the complaint procedure. Nor how this would affect Mr and Mrs B’s ability to reactivate their complaint in due course. From its communications and from the note of the meeting in May 2019 I do not find that Mr and Mrs B had an informed choice about the Council proceeding with a learning review instead of a stage two investigation.
8. Eighth, while it is clear the officer commissioned to undertake the learning review gave a lot of time to Mr and Mrs B, including discussing all aspects of their complaint, the final outcome delivered to Mr and Mrs B continued the pattern of poor communications. Again, it failed to explain the Council’s position that the review was considered an alternative to proceeding with the complaint through the complaint procedure. And where that left Mr and Mrs B if they remained dissatisfied. They did not know the Council considered their complaint closed at that time.
9. Ninth, while I recognise there was next some delay on the part of Mr and Mrs B to make clear to the Council they remained dissatisfied (around four months), there was a longer delay (around six months) before the Council acknowledged that dissatisfaction. Part of the reason for this was the Council did not complete an effective handover when officers changed posts.
10. Tenth, I find no satisfactory reason for the Council passing Mr and Mrs B’s complaint to its legal services in April 2021. The fact a complainant suggests they should be compensated for the consequences they perceive flow from their complaint, is not a reason not to answer a complaint. While the statutory guidance does not refer to compensation it uses the term ‘financial remedy’ and from my reading of Mr and Mrs B’s request this is what they sought. Their letter was certainly not a threat of legal action or worded to suggest they were seeking damages or the kind of compensation which a legal remedy might provide.
11. Eleventh, there is no evidence that if Mr and Mrs B’s correspondence went to the Council’s legal services it received any scrutiny from that service at all. So, there is no evidence to justify the Council’s position that it could not progress their complaint after April 2021, because another statutory or internal procedure had begun.
12. Finally, twelfth, regardless of which service took responsibility for replying to Mr and Mrs B, the failure of the Council to write to them after April 2021 giving its position on their complaint was unacceptable.
44. This series of faults reflects poorly on the Council. These faults have also caused Mr and Mrs B injustice. I consider the primary injustice is that of time, trouble and frustration caused by the numerous delays and poor communications of the Council.
45. But added to this I also consider there is some uncertainty, which we consider a form of distress. Because of the passage of time there must be some uncertainty about how effective a further investigation of Mr and Mrs B’s complaint can be at this time. While I anticipate the Council should still have adequate records, staff may have left their posts and memories will inevitably fade. It has also lost one piece of correspondence sent in September 2018 which may be helpful to the investigation. All these factors mean the outcome of any further investigation now, may not be what it would in 2018. Further I find merit in the argument put forward by Mr and Mrs B that relations with their son and the interactions of all three with the Council may have been adversely affected by the lack of an effective complaint investigation.
46. In response to my enquiries the Council accepted it made mistakes in its handling of Mr and Mrs B’s complaint. It has further acknowledged this in response to the drat of this decision. It has said that it will help facilitate investigation of Mr and Mrs B’s complaint at stage two of the children’s complaint procedure, notwithstanding the passage of time. So, while I consider an investigation now may not produce the same benefit as one conducted in 2018, I consider this offer will go some way towards remedying Mr and Mrs B’s injustice.

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Agreed action

47. In order to remedy Mr and Mrs B’s injustice the Council has therefore agreed that within 20 working days of a decision it will:
1. provide Mr and Mrs B with an apology accepting the findings of this investigation;
2. pay Mr and Mrs B £500 in recognition of their time and trouble and £250 in recognition of their distress; making £750 in total;
3. agree to appoint, without further delay, an Investigating Officer and Independent Person to investigate Mr and Mrs B’s complaint at stage two of the statutory complaint procedure.
48. I recommended the financial remedy above after taking account of the Ombudsman’s published guidance on remedies. This says that usually we will award between £100 and £300 to recognise the injustice of time and trouble and similarly in cases where we find distress. However, given the extent of the time and trouble caused to Mr and Mrs B in this case I considered a higher amount justified.
49. In moving forward with the investigation of Mr and Mrs B’s complaint I can see no need for the Council to delay matters further to seek any further clarification from them about what their outstanding complaint is. The persons appointed to investigate the complaint should have full access to all Mr and Mrs B’s previous correspondence and if they require any clarification, or wish to try and summarise the issues involved, then that would be a routine step at the outset of an investigation. During this investigation Mr and Mrs B have also made a statement to this office setting out what they consider are the outstanding issues and I have shared this with the Council in sending it a copy of this decision statement.
50. Finally, I considered also whether in this case there were procedural learning points for the Council given the number of failings listed. I am reassured to learn the Council now understands that attempts to resolve complaints outside of the complaint procedure must run alongside that procedure and are not an alternative to it. During my investigation I also gathered some statistical data which reassured me there are currently no delays with investigations of children’s services complaints. These factors make a repeat of the poor customer service Mr and Mrs B received less likely to occur. However, the Council has agreed that within two months of this decision statement it will:

• review existing liaison arrangements between its complaint service and legal services where it takes legal advice on whether to investigate a complaint (something which is appropriate in some cases). The Council will ensure it has procedures in place that mean it does not lose track of the complaint and ensures that it keeps in touch and replies to the complainant accordingly.

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Final decision

51. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr and Mrs B. The Council has agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman