The Investigstion

The complaint

1. As a result of another investigation by us, we are aware that since October 2021 the Council’s predecessor, Cumbria County Council, has delayed investigating complaints at stage two of the children’s statutory complaints procedure. The delays are likely to have caused frustration and distress and, in some cases, mean complaints remain unresolved.

Legal and administrative background

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

4. 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.

5. Because of local government restructuring in the Cumbria region in April 2023, Cumbria County Council has been replaced by two new unitary authorities, this Council and Cumberland Council. The legal framework for the restructure puts a duty on this Council to ensure there is a seamless transfer of statutory duties and functions from Cumbria County Council to this Council, for residents living in this Council’s area. This includes responding to our reports and the handling of complaints under the children’s statutory complaints procedure.

How we considered this report

6. We produced this report after considering information Cumbria County Council provided during another investigation we conducted.

7. We considered our Guidance on Remedies.

8. We gave the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

The children’s 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, 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 this stage of the procedure, councils appoint an investigating officer and an independent person who is responsible for overseeing the investigation. Councils should complete the stage two investigation within 25 working days from the date of the request, with a maximum extension to 65 working days.

12. The investigating officer can be employed by a council or be recruited from outside specifically to carry out stage two investigations. The only requirement is that the investigating officer does not directly line manage the service or person about whom the complaint is being made.

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.

What happened

14. A previous investigation by us (case reference: 22 006 918) found Cumbria County Council at fault for delay completing the investigation of Mrs X’s complaint at stage two of the children’s statutory complaints procedure. During that investigation, Cumbria County Council provided us with information indicating there were others in its area affected by similar delays. We considered Cumbria County Council’s actions may have caused an injustice to members of the public and decided to investigate this further, using our powers under Section 26D of the Local Government Act 1974.

15. The information Cumbria County Council provided said that, between 1 October 2021 and 10 October 2022, there were 12 complainants who had waited longer than 65 days for it to complete the stage two investigation, or whose investigation was still ongoing and had already exceeded the statutory time limit of 65 days. Six of these complainants live in this Council’s area.

16. We decided to open a separate investigation on these complainants’ behalf, to consider whether a personal remedy to this wider group was appropriate for the injustice they have suffered because of this fault.

17. Cumbria County Council told us the following.

• It had faced real challenges in completing statutory children’s services complaint investigations within the 65 working day timescale due to a shortage in investigating officers and independent persons to oversee investigations.

• Other councils in the North-West were experiencing similar challenges.

• It had recruited seven additional investigating officers during 2022, but these officers were not contracted to work specific hours. They could therefore be selective as to their availability to undertake investigations. This had proved challenging in recent months with investigators offering less hours.

• On average, it was taking 90 working days after a complainant requested a stage two investigation, before it could allocate the case to an investigator and independent person to begin the investigation.

It had seen a significant increase in requests for stage two investigations. In the last 12 months it had received 20 requests. In the same period during 2019-20 it had received eight requests.

Conclusions

18. A key principle of the children’s statutory complaints procedure is to ensure that those who make complaints about children’s services have their concerns resolved swiftly, and wherever possible, by the people who provide the service locally.

19. Cumbria County Council told us that since October 2021, there are six cases for residents living in this Council’s area where it had not completed the investigation within the required 65 working days. These delays are fault as they exceed the statutory time limits. These delays have caused an injustice. The delays are likely to have caused the complainants frustration and distress and meant their complaints have gone for long periods unresolved.

20. In line with the law and the statutory guidance, councils have a duty to ensure their processes and procedures enable them to complete stage two investigations within the statutory timescales.

21. Although we accept Cumbria County Council’s position that it had tried to address the issue, the information provided to us is of concern. On average it was not able to allocate an investigating officer and independent person until 90 days after the stage two request. This means investigations were not even being allocated until after the 65-day statutory deadline for completing the investigation had passed.

22. During our investigation into complaint reference 22 006 918, Cumbria County Council told us it had recruited and inducted seven additional officers during 2022 and was considering whether more staff training was needed to try to reduce stage two escalation requests. It also agreed to review its arrangements for completing stage two investigations. However, the evidence indicates an enduring fault causing wider injustice to others. More action is needed, as, unless there are significant improvements in the service, this fault will continue to cause injustice to others going forward.

23. The investigating officer can be employed by a council or be recruited from outside specifically to carry out stage two investigations. The only requirement is that the investigating officer does not directly line manage the service or person about who the complaint is being made. The Council should consider more broadly how it could meet its obligations.

24. Westmorland and Furness Council is now responsible for handling complaints under the children’s statutory complaints procedure. As a new council, this is a good opportunity to establish new or revised procedures and practices to enable it to complete stage two investigations within the statutory timescales.

25. The Council should consider the issues raised in this report at an appropriate committee or cabinet meeting. This will ensure councillors responsible for taking decisions are aware of the faults identified and can consider what actions are needed.

26. In response to a draft version of this report, the Council said it accepted the recommendations and was committed to using the feedback to inform the Council’s future approach to complaints. It said it had already put in place a comprehensive action plan to respond to the challenges. The action plan includes reviewed administrative approaches, a recruitment review and increased collaborative working between the complaints team and children’s services.

27. We welcome the Council’s response and are encouraged by its willingness as a new council to use the opportunity to learn from this investigation to improve its services.

Recommendations

28. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

29. In addition to the above and within one month of the date of this report, the Council should write to each of the six complainants who it identifies have either not complained to us or have done so, but not yet received a final decision. It should apologise for the delay completing the stage two investigation and explain they have been identified following our investigation into another case where the person complained about delay in the statutory process. It should ask each complainant to confirm whether they have complained to us about delay in completing the stage two investigation. If so, it should explain we will continue to consider those cases individually. For those complainants who have already complained to us and received a final decision, the Council does not need to take any further action.

For those of the six complainants who have not already complained to us about delay

30. Within one month of the date of this report, the Council should calculate a financial remedy, as outlined below, to recognise the frustration and distress caused by the delay and pay this to each eligible complainant. This is in line with what we would have recommended if they had complained directly to us.

31. The Council should pay them £25 a month for each full month of delay above the 65 working day statutory timescale. The timescale should start from the date the complainant requested Cumbria County Council conduct a stage two investigation until:

• the date the Council or its predecessor completed the stage two investigation by issuing its adjudication letter; or

• the date of our final report on this case, whichever is the sooner of the two.

32. In addition to this financial remedy for these eligible complainants:

• where the stage two investigation has not yet begun or is ongoing, the Council should complete the stage two investigation within 65 working days of the final report on this case.

• it should ensure each complainant is aware they can escalate their complaint to stage three of the statutory procedure, should they remain dissatisfied following the completion of stage two.

The Council has accepted our recommendations.

Decision

33. We have completed our investigation and decided to issue a public report. We have found fault and the Council has agreed action to remedy the injustice caused for those affected and to improve Council services.

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