Summary: Mr X complained about flaws and delays in the way the Council has investigated of his complaint under the statutory complaints process. I have found there were unnecessary delays at both stages of the statutory complaints process and the stage 2 investigation was inadequate. There were multiple failings in the care and support the Council provided to Mr X as a child in care. These failings amount to fault and caused Mr X a significant injustice which was not properly addressed under the statutory complaints process.

The complaint

1. The complainant, whom I shall refer to as Mr X complained about flaws and delays in the way the Council has investigated of his complaint under the statutory complaints process. He complains the stage two investigation was not thorough or robust as the investigating officer did not properly discuss the complaints with him and so did not understand his concerns. He is also concerned the Council failed to provide the investigating officer with all of the relevant files and that the investigating officer did not ask him for further evidence. And that his statement of complaint, desired outcomes, and the period to be investigated were changed without his agreement.
2. Mr X also complains that although the stage three panel determined there were failings in the stage two investigation and upheld his complaints the Council has failed to provide appropriate redress for the failings in service to him as a child.
3. He also complains the Council failed to adequately consider his requests for reasonable adjustments both in its communication with him and in relation to a face to face stage three panel meeting.

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The Ombudsman’s role and powers

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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. 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

8. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X; and
• Mr X 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

Statutory complaints procedure

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 (the guidance), 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. At stage two, councils appoint an investigator and an independent person. 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.
12. Once a complaint has been through the full procedure, unless the complainant points to faults or omissions in the Council’s consideration, it should not need re-investigating. The regulations specify the Council-appointed investigator should be independent. The process is also overseen by an independent person (who is not an elected member or an employee). Therefore, their findings should be relied on unless there are flaws in the process or it has clearly not been robust enough.

What happened here

13. Mr X was under the care of the Council from the age of nine. Many years later, as an adult he raised concerns about the care, education and support he had received as a looked after child. The Council initially refused to consider Mr X’s complaint. However, following a complaint to us, the Council agreed to appoint an Investigating Officer (IO) and Independent Person (IP) to investigate the complaint at stage two of the statutory complaints procedure.
14. The Council appointed an IO in August 2021, who contacted Mr X to arrange a conference call to discuss his complaints. This was arranged for 26 August 2021. The IO then sent Mr X a draft statement of complaint based on their conversation. Mr X told the IO he would prefer to wait until he had discussed his complaint with the advocate before proceeding further.
15. Having spoken to the advocate Mr X then asked for a further telephone call or meeting to discuss his complaints. A meeting was arranged for 1 October 2021, but the IO was unable to attend due to the fuel shortage. As the meeting could not be rearranged without a delay, Mr X completed the statement of complaint with support from the advocate. He asked that it be recorded that he had never met the IO and had only had a 15 minute call with them. Mr X signed the draft statement on 20 October 2021.
16. Mr X subsequently asked to add desired outcomes and a list of questions he would like answered to his statement of complaint. He also told the Council he no longer had advocacy support.
17. Mr X made the following 11 complaints:
1. Following the breakdown of Mr X’s only long-term foster placement the Council failed to act in his best interests by placing him in residential care homes for the rest of his duration in care.
2. The Council had not taken sufficient assessments of Mr X’s educational needs and had not given sufficient consideration and support in matching his educational needs to a suitable educational facility.
3. The Council failed in its statutory duty to provide Mr X with an appropriate level of specialist input which, therefore, prevented any psychological evaluation or assessment to be carried out between the ages of 13-18 years old, in relation to his education, behavioural and health needs during his time as a looked after child.
4. The Council failed to accommodate Mr X on multiple occasions following on from several incidents of assault, whilst residing in residential children’s homes.
5. The Council failed to provide continuous educational support to a vulnerable child in receipt of a Statement of Special Educational Needs (SEN).
6. The Council failed in its Corporate Parenting principles to appropriately prepare Mr X for independent living in readiness for him leaving care.
7. Following the birth of his child at the age of 19 years old, the Council failed to support Mr X.
8. The Council failed to complete a full investigation into the alleged physical abuse claims made by Mr X whilst residing in residential children’s homes.
9. The Council did not make adequate arrangements for Mr X to have contact with family at a reasonable frequency in accordance with his needs and wishes.
10. The Local Authority failed to comply with the Children’s Act 1989 Representations Procedures (England Regulation) 2006.
11. There was a data breach regarding Mr X’s subject access request, which resulted in the Council taking over a year to issue Mr X with his records. Mr X initially requested his records in 2018 but did not receive them until 2021.
18. These broad complaints were broken down into a number of more specific elements.
19. The Stage two report upheld an element of complaint 9 and partially upheld an element of complaint 2. All other complaints were not upheld save for complaints 8, 10 and 11 where the report made no findings.
20. Mr X was not satisfied with the stage two investigation. He was concerned the IO had not considered all of the evidence or investigated the full period of his complaint. Mr X asked for his complaint to be considered at stage three of the statutory process. He went through his care notes and identified hundreds of pages of evidence in support of his complaints which he felt the IO had not considered.
21. Mr X asked for the stage three panel hearing to be held face to face, rather than virtually as a reasonable adjustment. He also asked to record the meeting and for the Council to arrange advocacy support for him. The Council did not agree to a face to face meeting and told Mr X the meeting would be held virtually with measures in place to assist Mr X. A virtual panel meeting was arranged for August 2022. Mr X maintained this was not appropriate and made a complaint about the Council’s failure to make reasonable adjustments.
22. In late July 2022 the Council confirmed the panel meeting would be face to face but would need to be re arranged for a different date. The Council told Mr X he could not record the meeting but notes would be taken and he could bring a representative to support him or speak on his behalf. The panel meeting took place in October 2022.
23. The stage 3 review panel considered the actions and evidence of the stage 2 investigation and adjudication. The stage 3 panel also reviewed the findings on the complaints that were not upheld, or where no finding was made.
24. The review panel partly upheld complaints 1, 2, 3, 4, 5, 7, and 9 and upheld complaints 6 and 8. The panel considered complaints 10 and 11 were outside the remit of the statutory complaints process.
25. In addition the panel considered Mr X’s concerns about the flaws in the stage 2 process and the issues he felt had been missed. The review panel found the stage 2 investigation had not provided a full and robust report, but acknowledged there may have difficulties as the case records were over 30 years old. It recommended:
• Mr X is signposted to Education and Health services if he has any further complaints about his education or mental health status following being accommodated by the Council
• There is joined up working with the complaints team when a Subject Access Request (SAR) is made to ensure continuity of advocacy support if a subsequent complaint is raised by a formed child in care
• The complaint team to consider putting ongoing stage 2 investigations on hold when a SAR is made so complainants can consider if there are any additional issues they wish to raise
• The Council responds to Mr X’s desired outcomes including those of financial redress in light of the stage 3 review findings.
26. In the Council’s adjudication letter the Council agreed with the stage 3 review panel findings. The Council offered to pay Mr X £250 for the time and trouble he had been put to in pursuing the complaint.
27. Mr X has asked the Ombudsman to investigate his complaint. He is unhappy with the complaint process at both stage 2 and stage 3 and considers the Council’s final response and proposed remedy to be inadequate. Although most of his complaints were upheld or partially upheld Mr X asserts the Council has not adequately recognised his poor experiences as a child in care, or his missed education and the impact this has had on him.
28. Mr X complains that Council failed to make reasonable adjustments to enable him to participate in the complaints process. During the stage 2 process, when he no longer had advocacy support Mr X asked for communication to be by telephone as he found email communication difficult. He says the Council refused to consider this request and as a result he had to exchange over 300 emails as he struggled to understand the process. He complains the Council threatened to treat him as persistent and vexatious when he was trying to clarify the procedure and next steps.
29. The Council says it spoke to Mr X by telephone where possible, but Mr X required responses immediately and when it offered times to call back this was not always acceptable to Mr X. The Council states officers found conversations with Mr X very difficult as he would not listen to answers he did not believe to be correct and would talk over officers.
30. The Council also notes Mr X sent in excess of 450 emails and expected an instant response, which was not always possible. It states Mr X has however received responses to all of his enquiries.
31. Mr X asked for further advocacy support in the stage 3 process. The Council told Mr X it had attempted to source an advocate did he not meet the criteria. It suggested Mr X contact an advice agency for assistance and confirmed he could bring a representative to support him at the stage 3 panel meeting, or to speak on his behalf.
32. In relation to Mr X’s request for the review panel to be held face to face, the Council told him this would not be possible due to COVID and OMICRON concerns. It explained staff were not allowed in council buildings at that time and all staff were advised to work from home. The Council offered to put in place additional measure such as regular breaks to assist Mr X with a virtual meeting.

Analysis

33. It is clear from the documentation that there were failings in the complaint process. The stage 3 review panel identified and the Council has accepted that the stage 2 investigation was not thorough and did not provide a full and robust report. The stage 2 investigation did not include consideration of all available information and documentation and the IO had only a brief conversation with Mr X about his complaints. There were also delays in concluding the stage 2 investigation, which was not completed within the statutory timeframe.
34. These failings in the stage 2 process meant the findings could not be supported at stage 3 of the complaint process. Mr X made detailed submissions and provided significant additional information to the stage 3 review panel which enabled the panel to uphold or partially uphold his complaints. There is no evidence of fault in the way the panel reached its findings.
35. Having upheld his complaints, Mr X complains the review panel did not properly consider his desired outcomes, in particular his request for financial compensation. He asserts his desired outcomes were reworded to change the meaning and context. Consequently the Council only offered a financial payment in respect of Mr X’s time and trouble in pursuing the complaint rather than the impact of the specific issues he had complained about and which had now been upheld. While I consider a payment in recognition of the unnecessary time and trouble Mr X was put to is appropriate, I do not consider this in itself is an adequate remedy for Mr X’s complaint as a whole. I shall comment on this further below.
36. Although Mr X is pleased the stage 3 review upheld his complaints, he has complained about the stage 3 process. Specifically that this was not concluded within the required timeframe and that the IO did not attend the panel meeting. The delay appears to have been, in part, due to the Council’s reluctance to agree to Mr X’s request for the panel meeting to be held face to face. There were also delays and difficulties in agreeing a date and in appointing a chair and panel.
37. It is unfortunate that the IO was unwell and unable to attend the review panel meeting. But given the length of time taken to arrange this meeting, and the further delays a postponement would have involved, the decision to proceed without them was understandable. The panel was able to consider Mr X’s complaints in the IO’s absence.
38. The documentation shows Mr X made repeated requests for reasonable adjustments to enable him to participate in the complaint process. Mr X had an advocate to support him at stage 2. Although he did not meet the criteria, the advocacy agency accepted him under special circumstances for a limited period before withdrawing their support. The Council states it was unable to source another advocate and advised Mr X to contact an advice agency for support. It also confirmed he could bring a friend to support him at the review meeting.
39. The Council declined Mr X’s initial request for the stage 3 review to be held face to face as staff were not allowed in council buildings at the time and were still working from home. Mr X disagrees with this decision, but it is clear the Council considered Mr X’s request and determined it could not facilitate it. When the position changed a face to face meeting was arranged.
40. It is clear from the documentation that the Council has considered Mr X’s requests for reasonable adjustments but it has not always been possible to meet them.
41. Having identified fault I must now consider whether this fault has caused Mr X a significant injustice and if so how this can be remedied. It can be difficult to conduct a fair and accurate investigation into matters that happened over twenty years ago. Even where there is sufficient evidence to reach a sound judgement it can be more difficult to achieve a meaningful remedy given the length of time that has passed and the difficulty in establishing causality over longer time periods.
42. The review panel questioned the Council’s effectiveness as a corporate parent acting in Mr X’s best interest. It upheld a number of Mr X’s on the basis there are no records to confirm whether appropriate actions were carried out or considered in a timely manner. The panel noted the missing documentation included:
• assessments of the suitability of the children’s homes, and whether they were meeting Mr X’s needs;
• the outcomes of strategy meetings and complaints;
• risk assessments of any safeguarding issues in relation to Mr X and also the staff and other residents in the children’s homes when Mr X was placed in children’s homes where there were ongoing incident with the staff and other; and
• whether Mr X was supported in his transition from a foster placement and in being taken out of school.
43. The panel had significant concerns about whether due process was followed when Mr X was raising complaints and making allegations of abuse. It noted there was a duty on the Council to remove Mr X from potentially volatile situations in terms of risks to himself and others against whom he had made allegations.
44. The panel also determined it was inappropriate to place Mr X with his sister without a risk assessment and it questioned the appropriateness of a bedsit placement if Mr X had not been engaging and did not have any independence skills.
45. However the panel also noted Mr X’s case file indicated an extensive history of challenging and disruptive behaviour while placed at the children’s homes, and that Mr X was prosecuted for a number of offences. The case records also show:
• Mr X regularly refused to follow up his allegations or receive medical reviews of alleged injuries;
• numerous references to Mr X’s use of illicit substances;
• Mr X declined support from mental health services; and
• Mr X was given ample opportunity to continue his education whilst at the children’s homes but was unwilling to engage or cooperate.
46. Our guidance on remedies recommends remedy payments for distress of between £100 and £300. With payments of up to £1000 where the distress was severe or prolonged. Similarly our guidance recommends remedy payments of up to £1500 where there was a significant risk or harm actually occurred. Exceptionally we may recommend more than this.
47. Where fault has resulted in a loss of educational provision we usually recommend a payment of between £200 and £600 per month to acknowledge the impact of that loss. However I do not consider a payment calculated in this way is appropriate in this instance. The Council considers the case history shows Mr X was provided education throughout his time in care and that on a number of occasions he refused to engage. However, the documentation shows Mr X was out of full time education for a significant period. Mr X was on roll at school while in foster care but was removed from the roll when he moved to the children’s home and did not then return to full time education. This has impacted Mr X’s future options and this requires a remedy.
48. In considering the amount of any remedy I am mindful that the documentation suggests that even if a school placement had been available it is likely Mr X would not have engaged fully. The records show Mr X refused to consider school places and wanted a college course to develop life skills. However, when this was arranged, Mr X had been out of education for a significant period and his attendance and engagement was not consistent.
49. Taking all of this into account I consider a payment of £5,000 would be appropriate in recognition of the distress, harm or risk of harm Mr X experienced as a child in care and the failings in his education.
50. This would be in addition to the apology and payment of £250 for Mr X’s time and trouble which the Council has already provided.
51. The Council does not accept there were failings in Mr X’s education but has agreed to pay the £5000 recommended to redress the distress, harm or risk of harm Mr X experienced as a child in the local authority’s care.
52. Mr X is unclear about how the stage 3 panel has considered his complaints about missed education. The panel recommended the Council signpost Mr X to Education and Health services if he has any further complaints about his education or mental health status following being accommodated by the Council. Mr X says the Council has not complied with this recommendation, and he is uncertain which issues this would relate to. He says he has tried to clarify this with the Council but it has not responded.
53. The records show it was decided at an annual review in 2001 to discontinue Mr X’s SEN statement. The stage 3 panel suggest that if Mr X disagreed with this decision he would need to raise it with Education services. The panel also confirmed the assessment of Mr X’s mental health was outside the remit of the statutory complaints process. Social workers would not have been able to assess a child’s mental health or provide a diagnosis. The panel suggested Mr X would need to raise this issue with health services if he wished to pursue it.
54. It is disappointing the Council has not signposted Mr X Education and Health Services as agreed. We would expect it to do so without further delay if Mr X requests this.

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Agreed action

55. The Council has agreed to pay Mr X £5,000 in recognition of the distress, harm or risk of harm Mr X experienced as a child in the Council’s care.
56. The Council should take this action within one month of the final decision on this complaint and should provide us with evidence it has complied with the above actions.

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Final decision

57. There were unnecessary delays at both stages of the statutory complaints process and the stage 2 investigation was inadequate. There were multiple failings in the care and support the Council provided to Mr X as a child in care. These failings amount to fault and caused Mr X a significant injustice which was not properly addressed under the statutory complaints process.

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Investigator's decision on behalf of the Ombudsman