Summary: The Council was not at fault for its refusal to provide therapeutic support to Miss B’s son. Its explanation – that this is the responsibility of the NHS – is not unreasonable. But it was at fault for failing to keep records proving that it made agreed service improvements following Miss B’s complaint. It was also at fault for delaying its complaint investigation by around a year. It has agreed to make a symbolic payment to Miss B, and to take steps to improve its record-keeping when it completes service improvements following complaints in future.

The complaint

1. The complainant, whom I refer to as Miss B, complained to the Council in 2020 about how it had acted towards her and her son while he was in local authority care (and after he returned home). I refer to her son as C.
2. The Council considered Miss B’s complaint under the three-stage statutory children’s complaints procedure. This involved an independent investigation (at stage 2) and consideration by an independent panel (at stage 3).
3. The stage 2 investigator upheld almost all of Miss B’s complaint, and the panel agreed. They made recommendations that the Council should provide remedies directly to Miss B and should take steps to improve its practice.
4. Miss B complains that:
• The investigator and the panel recommended that the Council commission a neurological assessment for C and pay for family therapy, but it refused. She was forced to pay for £190 for therapy herself.
• She has not seen evidence that the Council has completed the actions it agreed following the complaints procedure.
• The complaints procedure took around two years.
5. Miss B says she and C suffered significant distress because of the Council’s failings. She wants compensation for this distress, and wants reimbursing for the £190 she spent on therapy.

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The Ombudsman’s role and powers

6. 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)
7. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
8. 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)
9. 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

10. I considered:
• information from Miss B and the Council.
• the statutory guidance on handling Children Act complaints, ‘Getting the best from complaints’.
• the Ombudsman’s guidance on remedies.
11. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Council’s refusal to arrange therapy for C

What happened?

12. During the complaints procedure, the stage 2 investigator found that the Council had failed to provide appropriate therapy for C, and that he was in need of a neurological assessment. The investigator recommended that the Council consider commissioning such an assessment.
13. The stage 3 panel agreed with the investigator’s findings, and recommended that the Council work in partnership with the NHS to fund therapy for C.
14. The Council rejected these recommendations. It said it was the NHS’ responsibility to provide therapeutic assessment and support to C.
15. The Council says that, in April 2022, the NHS agreed to undertake a full assessment of C and agreed to consider undertaking a neurological assessment. The Council says the assessment started in May and is ongoing.
16. The Council also says Miss B has had a private assessment done which suggests C has ADHD. It says the NHS will undertake further testing once it has received this private diagnosis.

My findings

17. The Council’s view that therapeutic assessment and support for C should be led and arranged by the NHS is not unreasonable. Although there is nothing stopping the Council arranging therapy or an assessment privately if it wants to, its decision not to do so in C’s case was a matter of professional judgment, which it adequately explained. I cannot question this.
18. The NHS is now taking steps to address some of the issues that were identified during the statutory complaints procedure. This is consistent with the reasons the Council gave for refusing to address these issues itself.
19. Consequently, I have found no fault in the Council’s refusal to arrange a neurological assessment or therapy for C, and I will not recommend it reimburse Miss B for therapy she paid for herself.

The Council’s implementation of recommendations from the statutory complaints procedure

20. Following the completion of the statutory procedure in April 2022 the Council agreed to a range of measures designed to improve its service.
21. The Council says it has completed all these service improvements, and has provided evidence that it has completed some of them. But its claims to have completed many of them are unsupported by any documentary evidence (other than signed statements from staff members).
22. Although I am not suggesting the Council failed to complete all the improvements it agreed following Miss B’s complaint, nor, without documentary evidence, can I say it completed them. The lack of records appears to have caused some uncertainty in the Council – which initially told me it had not done everything it was supposed to, before changing its mind – and I am similarly uncertain about what has happened.
23. As a matter of course, councils should keep proper records which demonstrate what they have done, and when. This includes when completing actions which arise from statutory complaint investigations. In the absence of such records I have found fault with the Council.
24. As it has been a long time since Miss B first made her complaint, and given that none of the recommended service improvements concern her or C directly, I do not consider it proportionate to recommend that the Council complete, or re-complete, the unevidenced recommendations. But it should take steps to ensure that it keeps better records in future.
25. I have also considered Miss B’s request for compensation for distress she and C have suffered. Although we can recommend small, symbolic financial remedies when we believe someone has suffered avoidable distress, we do not intend these remedies to be punitive and we do not recommend compensation in the way a court might.
26. I cannot place a value on the distress Miss B and C have suffered from the Council’s failings. Only a court could do this. Consequently, I will not attempt to decide a financial remedy.

Delays to the statutory complaints procedure

27. The statutory guidance says councils should complete stage 1 of the statutory complaints procedure within 20 working days, stage 2 within 65 working days and stage 3 within 50 working days.
28. Councils have the discretion not to investigate complaints if to do so could prejudice ongoing court proceedings. A complainant can resubmit their complaint once the court proceedings have finished.
29. Miss B made her stage 1 complaint at the end of May 2020 and, following a meeting to confirm the complaint in early July, the Council responded in mid-September.
30. Shortly afterwards, Miss B asked to escalate her complaint to stage 2. The Council initially decided it could not investigate because of court proceedings, but, two months later, it was told the proceedings had finished. At that point it was having difficulty finding a company to provide independent investigators, and the investigation did not start until August 2021. The Council sent its response in mid-December.
31. Miss B asked to escalate her complaint to stage 3 straight away. The Council responded in early April 2022.
32. Taking into account the two-month suspension of the complaints procedure, the Council was responsible for around a year of delays. Although I acknowledge the difficulties it was having, the timescales are set out in statutory guidance and are non-negotiable. This was fault by the Council.
33. Although, as I have set out above, the Ombudsman is not a body which can adequately calculate compensation for distress or trauma, we do routinely recommend symbolic payments which recognise fault, such as delays. Such a payment would be proportionate to recognise the impact these delays had on Miss B.

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Agreed actions

34. Within six weeks of this decision, the Council has agreed to:
• Create a new template form which can be used to monitor the Council’s implementation of recommendations made at stages 2 and 3 of the statutory complaints procedure. The form will require a named person responsible for each agreed action, timescales for completion and details of how each recommendation has been met (and when).
• Send the above template form to relevant managers for use in response to future complaints.
• Make a payment of £300 to Miss B to recognise the significant delays in investigating her complaint.
35. The Council has agreed to provide us with evidence that it has completed these actions.

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Final decision

36. The Council was at fault for its record-keeping and for delays to its complaint investigation. The agreed actions remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman