Summary: Ms X and her daughter Ms Y complained the Council's investigation into how it cared for Ms Y as a Looked After Child and communicated with Ms X was not sufficiently comprehensive. The Council was at fault for not considering Ms X and Ms Y’s complaint using the children’s statutory complaints procedure, but this did not cause them an injustice because the Council's investigation was thorough and identified significant failings which it has appropriately remedied. It has agreed to remind staff of the correct process for considering complaints that come under the remit of the children’s statutory complaints procedure.

The complaint

1. Ms X and her daughter, Ms Y, complained the Council's investigation into how it cared for Ms Y when she was a Looked After Child and how it communicated with Ms X was not sufficiently comprehensive.
2. Ms X and Ms Y said the Council's failings while Ms Y was a Looked After Child caused them both significant distress and made them lose trust in the Council.

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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. 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)
4. 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:

• 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.

(Local Government Act 1974, section 24A(6))

5. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. I have chosen to investigate this complaint because Ms X and Ms Y have already been through mediation with the Council, and it is unlikely a further complaint response would have a different outcome.
6. 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

7. I have considered:
• all the information Ms X and Ms Y provided and discussed the complaint with Ms X and her advocate;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
8. Ms X and the organisation 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

Relevant law and guidance

Looked after child

9. Councils have a duty to provide accommodation for any child in need in their area who appears to them to need accommodation because:
• there is no-one who has parental responsibility for the child;
• the child is lost or abandoned; or
• the person who has been caring for the child is prevented, whether permanently or temporarily and for whatever reason, from providing suitable accommodation or care.
10. The council can either provide the accommodation or arrange for accommodation to be provided. A child accommodated in this way is a ‘Looked After Child’ (LAC).

Children’s statutory complaints procedure

11. The Children Act 1989 sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. We call this the children’s statutory complaints procedure.
12. The law says councils must use the procedure when a child or their parent complains about certain issues, including the quality of care provided to them as a looked after child. When a council receives a complaint which relates to a child but is not on the child’s behalf, it should consider whether the person complaining has sufficient interest in the child’s welfare to justify it using the procedure.
13. The accompanying statutory guidance, ‘Getting the Best from Complaints’, (the Guidance) says councils do not need to consider complaints made more than one year after the events complained about occurred. This is because the ability to properly investigate and remedy issues diminishes over time. However, the Guidance also says councils should consider whether there are reasons to investigate late complaints. This includes:
• where the person complaining was vulnerable;
• where there may be a benefit to the complainant of carrying out an investigation, or
• if there is likely to be enough information available to carry out an investigation fairly and effectively.
14. The Guidance also sets out the process for considering complaints.
• The first stage of the procedure is local resolution.
• If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation.
• 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.

What happened

Background

15. The Council became involved with Ms X and Ms Y in 2012 and by early 2013, Ms Y became a Looked After Child. Ms Y lived in several placements throughout her time in care and in two there were allegations Ms Y was subject to inappropriate sexual behaviour. Ms X tried to have Ms Y returned to her care in 2015.
16. In 2019, due to an incident in the independent living home Ms Y was living in, the Council decided it was best for her to return home to live with Ms X.

Complaint

17. Ms X’s MP contacted the Council on her behalf in April 2020 because Ms X wanted to complain. The Council decided to offer Ms X and Ms Y the opportunity to go through ‘independent facilitated mediation’ instead of the statutory children’s complaints procedure. Ms X and Ms Y agreed.
18. In response to the Ombudsman, the Council said it chose to offer mediation because the issues Ms X and Ms Y raised dated further back than one year and it was unusual for it to consider such ‘late’ complaints. It also hoped mediation would result in a more positive outcome for Ms X and Ms Y because it would involve them in the process more than a complaint investigation.
19. The Council held three two-hour mediation meetings, which covered the entire period Ms Y was in care. Involved in the process was Ms X, Ms Y, the independent mediator, an independent advocate paid for by the Council to support Ms X and Ms Y, family advocates, a social worker, the group manager for safeguarding and the head of service for safeguarding.
20. The outcome of the mediation was that the Council identified significant failings in how it had cared for Ms Y and worked with Ms X. Specifically, it found:
• it had not met Ms Y’s needs or properly considered her views;
• it had not taken proper care of Ms Y’s personal property, meaning she returned home with one bin bag of belongings;
• it had not communicated effectively with Ms X or worked in partnership with her. It had not involved Ms X in discussions about Ms Y’s welfare and had not consistently organised contact between them. This meant Ms X and Ms Y felt isolated and like they had to fight for everything;
• the care provided by the Council was not proactive. There was no obvious plan to support Ms X to improve her parenting skills or mental health. Ms X carried out training and development on her own but her efforts were not properly considered by the Council when considering when Ms Y could return home;
• Overall, the Council's failings likely meant Ms X and Ms Y’s experience of the care system was longer and more negative than it needed to be. Ms X and Ms Y reported they both suffered from significant mental health issues as a result and said their relationship had been harmed.
21. The Council discussed remedies with Ms X and Ms Y. It agreed to:
• make an apology to both of them;
• pay for Ms Y to attend 20 sessions with a psychologist;
• pay for a psychologist to assess Ms X. It would pay for any sessions identified as necessary following the assessment;
• pay Ms Y £3,830 for her lost personal belongings;
• pay Ms X and Ms Y a total of £5000 in recognition of the distress and harm they experienced and for the time and trouble they went to pursuing the complaint;
• hold a meeting with senior leadership at the Council to reflect on the issues raised by Ms X and Ms Y. It would ensure Ms X and Ms Y were able to participate in the meeting;
• use the meeting to look at ways to increase the number of young people, parents and carers involved in improving the children’s service. This included inviting Ms Y to join its upcoming ‘Young Advisors Service’; and
• consider how the Council could hold review meetings in future when investigating complaints about cases similar to Ms X and Ms Y’s.
22. Ms X and Ms Y still had some unresolved questions, so the Council offered to ask an independent social work consultant to review their case files. Ms X and Ms Y agreed.
23. The mediator worked with Ms X and Ms Y to identify their remaining questions for the reviewer:
1. Whether there was evidence of professional discussions about Ms X’s request to change Ms Y’s social worker.
2. Whether Ms Y’s views and experiences had been considered and recorded.
3. Whether the Council had worked with Ms X to parent Ms Y cooperatively.
4. What the Council did in response to concerns Ms X and Ms Y raised and following incidents that occurred.
24. In December, the reviewer issued their report. I have seen the report and the consultant provided a detailed response to each of Ms X and Ms Y’s questions; setting out a summary of the Council's records. For questions two to four, the reviewer focused on the last three events Ms X and Ms Y gave as examples of their concerns.
25. The mediator and reviewer held a meeting with Ms X and Ms Y to discuss the findings. A record of the meeting shows Ms X and Ms Y recognised some of their questions could not be answered due to the amount of time that had passed. They said the reviewer had given clear answers to their questions as far as possible. They felt the payments the Council had offered them were insufficient and wanted more changes to the Council's practice to prevent the failings happening again.
26. Ms X and Ms Y remained unhappy and complained to the Ombudsman. They said the mediation process had not answered all their questions and their complaints had not been addressed comprehensively. They wanted a full reinvestigation and a larger financial payment.

Findings

27. The Council offered Ms X and Ms Y mediation because the issues they complained of dated back further than the one year the statutory procedure allows for. However, the Guidance is clear that if a Council receives a valid but ‘late’ complaint, it should consider if there are valid reasons for the delay in complaining and whether there would be a benefit in choosing to investigate. If the Council decides to consider the complaint, it must use the statutory procedure. It cannot use an alternative resolution process. The Council was at fault.
28. The Council also felt mediation would be more beneficial to Ms X and Ms Y. While well-meaning, this was not a valid reason not to use the statutory procedure and was also fault.
29. However, the faults did not cause Ms X or Ms Y a significant personal injustice. The Council's mediation process gave them opportunity to raise and discuss their concerns with relevant staff from the Council and with the support of an advocate and the independent mediator. The Council identified significant failings in its actions and when Ms X and Ms Y had further questions, arranged for an independent person to review the relevant documents to provide further clarity.
30. The reviewer looked at the case records relevant to the last three events Ms X and Ms Y gave as examples of their concerns for each of questions two to four. This was appropriately thorough; the approach meant the reviewer focused on the issues which occurred mostly recently, where records were likely to be the most reliable and complete. In addition, Ms X and Ms Y noted the reviewer had answered their questions as far as possible, particularly given the amount of time that had passed since some of the events.
31. The mediation process was suitably comprehensive, and, on balance, it is unlikely consideration using the statutory procedure would have resulted in a different outcome. For the same reason, reinvestigation of the issues by the Ombudsman is unlikely to have a different result.
32. The Council, in discussion with Ms X and Ms Y, identified actions it would take to address the failings it identified. This included an apology as well as ongoing opportunities to work with the Council to improve its children’s services. Ms X and Ms Y feel the £5000 the Council paid as a symbolic payment in recognition of the distress, harm and time and trouble they experienced is insufficient. I have considered the Ombudsman's Guidance on Remedies. The £5000 the Council paid is a suitable symbolic payment; we would not recommend more. The changes the Council has agreed to make to its practice are suitable to prevent the fault occurring again.

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Agreed action

33. Within three months of the date of my final decision, the Council will remind its staff that mediation is not an alternative route for considering complaints that come under the remit of the children’s statutory complaints procedure.

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Final decision

34. I have completed my investigation. I have found fault in how the Council considered Ms X and Ms Y’s complaint but this did not lead to personal injustice.

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Investigator's decision on behalf of the Ombudsman