Summary: The complainant’s (Mr Y) representative (Advice Centre) said the Council failed by refusing to investigate Mr Y’s out-of-time complaint at stage two of its children’s complaint procedure. We found fault in the way the Council dealt with Mr Y’s complaint. This caused him injustice. The Council agreed to apologise, consider Mr Y’s complaint at stage two and provide staff training.

The complaint

1. The Advice Centre says the Council failed by changing its position on considering Mr Y’s complaint at stage two of the children’s statutory complaint process. When refusing to do so the Council said:
• Mr Y’s complaint was out-of-time;
• Mr Y’s complaint related to a point of law which investigators appointed by the Council would not be qualified to resolve.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I reviewed all the documents provided by.
5. The Advice Centre and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

Legal and administrative framework

7. The guidance ‘Getting the best from complaints’ Social Care Complaints and Representations for Children, Young People and Others (Guidance) is based on the Children Act 1989 Representations Procedure (England) Regulations 2006. Only in exceptional circumstances councils can justify a variation from this document.
8. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services.
9. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
10. 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. Councils have up to 13 weeks to complete stage two of the process from the date of request.
11. The Council must consider the complaint at stage two when:
• the council and the complainant have not resolved matters as part of the local resolution; and
• the complainant made a request.

(The Children Act 1989 Representations Procedure (England) Regulations 2006 Reg. 15(2) and 17(1)(b))

12. Councils do not need to consider complaints made more than one year after the grounds to make representations arose. In such cases councils should follow the process:
• complaints manager should write to advise the complainant their complaint cannot be considered, explaining the reasons;
• the letter should include an advice of the complainant’s right to approach the Local Government and Social Care Ombudsman;
• councils should make their decisions on a case by case basis with the general presumption in favour of accepting the complaint unless there is good reason against it.
13. The time limit can be extended at the council’s discretion if:
• it is still possible to consider the representations effectively and efficiently;
• it would be unreasonable to expect the complainant to have made the complaint earlier.
14. 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. However, after the proceedings have ended, a complainant can resubmit the complaint for the council to consider.

What happened

15. In the beginning of April 2022 the Advice Centre, acting on behalf of Mr Y, lodged a complaint about the Council’s refusal to carry out a child in need assessment for Mr Y in March 2015. The Advice Centre complained also about the Council’s alleged failure to protect Mr Y from homelessness and provide support for him as a looked after child.
16. The Council did not uphold Mr Y’s complaint when it responded 27 days later. It said the Council had acted appropriately and proportionately in accordance with Mr Y’s needs at the time. The Council advised if Mr Y remained dissatisfied he had 20 working days to ask for his complaint to be escalated to stage two.
17. In the beginning of June the Advice Centre asked the Council to consider Mr Y’s complaint at stage two.
18. After several chasing up emails from the Advice Centre, the Council responded in the second week of August, refusing to carry out investigation of Mr Y’s complaint at stage two. It explained:
• The complaint is too old, as the events complained about happened seven years before;
• Complaint process is not the most appropriate action to pursue;
• Independent investigators are not trained to resolve Mr Y’s complaint as it was made on the point of law.
19. The Advice Centre asked the Council to re-consider its position on the following grounds:
• The Council has already started looking at Mr Y’s complaint so the change of the Council’s position at this stage is not reasonable;
• Mr Y was a child at the time of the alleged Council’s failings and was not aware of his rights;
• The Council’s failings have an on-going impact on Mr Y;
• Written evidence is available and would allow the investigation;
• Mr Y has no intention of bringing legal proceedings.
20. Three weeks later, after a chasing email from the Advice Centre, the Council confirmed it would not continue investigating Mr Y’s complaint.

Analysis

The Council’s refusal to consider Mr Y’s complaint at stage two

21. The Council does not need to consider out-of-time complaints, however before refusing to investigate complaints under the children’s representations procedure the Council must apply the test laid out under paragraphs 11-12 of this decision.
22. By providing its substantive response in May 2022, the Council implied it exercised its discretion and decided to investigate Mr Y’s complaint, despite it being late.
23. The law says the Council must consider the complaint at stage two if it has not resolved matters on a local level and the complainant asked for it.
24. Once the Council considered Mr Y’s complaint at stage one and the Advice Centre asked for the complaint to be escalated to stage two, it was too late for the Council to change its position on exercising discretion on Mr Y’s out-of-time complaint.
25. For the reasons explained above, the Council’s refusal to consider Mr Y’s complaint at stage two is fault.
26. At no point the Advice Centre suggested that Mr Y intended to take legal action or there were any concurrent court proceedings, which might have justified the Council’s refusal to investigate his complaint.
27. The Council’s fault caused Mr Y injustice by delaying resolution of the issues he complained about.

Timescales

28. Although the Council provided its stage one response seven days after the statutory timescale, this delay would not cause significant injustice to Mr Y.

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Agreed action

29. To remedy the injustice caused by the fault identified, we recommend the Council within two weeks of my final decision complete the following:
• Send a written apology to Mr Y;
• Start the stage two investigation under the children’s representations procedure with the view of completing it within five weeks. If this does not happen the Council will provide us with the written chronology of actions undertaken and the reasons for the delay in completing the investigation.
30. We also recommend the Council within three months of the final decision provide training for its staff dealing with the Children’s Services complaints on the criteria to be applied when dealing with late complaints contained in the guidance ‘Getting the best from complaints’. The Council will let us know when this training has been completed.

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Final decision

31. I uphold this complaint. I found fault which caused injustice to Mr Y. The Council has accepted my recommendations so this investigation is now at an end.

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Investigator's decision on behalf of the Ombudsman