Summary: Mr and Mrs X complained the Council did not consider its duties under the Equality Act 2010 when it carried out a child and family assessment. Mr and Mrs X also complained the Council delayed investigating their complaint that the assessment was discriminatory. We found fault by the Council in its complaint handling and the Council has agreed a remedy to address the injustice identified.

The complaint

1. Mr and Mrs X complained the Council did not consider its duties under the Equality Act 2010 when it carried out a child and family assessment in August 2021. Mr and Mrs X also complained the Council delayed investigating their complaint that the assessment was discriminatory.
2. Mr and Mrs X say the Council’s actions caused the family avoidable stress and upset. They would like the Council to acknowledge its actions and ensure other families do not have the same experience. Mr and Mrs X would also like the Council to provide a financial remedy to recognise the stress caused to the family.

Back to top

What I have and have not investigated

3. I have investigated the complaints referred to in paragraph one of this statement.
4. Mr X made a previous complaint to the Council regarding the child and family assessment. We investigated (under reference 21009243) and found no fault regarding how the Council dealt with Mr X’s correspondence about inaccuracies in the assessment. I have not reinvestigated the events reviewed as part of that investigation.
5. The Council investigated several complaints made by Mr and Mrs X via the children’s statutory complaints process. I have not reinvestigated the complaints considered as part of the statutory complaints process.

Back to top

The Ombudsman’s role and powers

6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)
8. 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)
9. 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)
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

11. I discussed the complaint with Mr and Mrs X and considered the information they provided.
12. I made enquiries to the Council and considered the information it provided.
13. Mr and Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

Back to top

What I found

14. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need. A child is in need if:
• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.
15. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. Where a referral is accepted under section 17 the council should lead a multi-agency assessment and compete it within 45 working days. Where the council’s children’s social care decides to provide services, it should develop a multiagency child in need plan which sets out which organisations and agencies will provide which services to the child and family. (Working Together to Safeguard Children) 
16. Working Together to Safeguard Children says, “Where a child has other assessments, it is important that these are co-ordinated so that the child does not become lost between the different organisational procedures”. (Working Together to Safeguard Children, 49) 

Child in Need Plan

17. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.

The Council’s policy for undertaking child and family assessments

18. The Council’s policy for carrying out child and family assessments states the assessment should establish, among other things, “how and why the concerns have arisen”. It also says the assessment should establish “what extent the impact and influence of wider family and any other adults living in the household has on this, as well as community and environmental circumstances”.

Statutory complaints procedures

19. 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.
20. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond. 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.
21. 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. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.
22. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed.

Equality Act 2010

23. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
24. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The ‘protected characteristics’ referred to in the Act are:
• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation
25. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
26. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

Background

27. This chronology includes key events in this case and does not cover everything that happened.
28. Mr and Mrs X have three children. In 2020, the Council carried out a child and family assessment following concerns raised about the welfare of Mr and Mrs X’s oldest child, Child Y.
29. In July 2021, the Council held a multiagency telephone meeting as part of a review of its child in need plan. Mrs X and Child Y’s social worker were among those who attended. The Council discussed the actions taken and the progress made as part of the review.

What happened

30. In August 2021, the Council carried out a child and family assessment following concerns raised about the welfare of Mr and Mrs X’s second child, Child Z. Shortly after, the Council shared a copy of its assessment with Mr and Mrs X.
31. In September 2021, Mrs X emailed the Council regarding the assessment. She said the assessment contained inaccuracies and that the Council had not verified some of the recorded comments with Mr X. Mrs X said the assessment stated she and Mr X were not born in the UK and that the assessment referred to levels of cultural difference. Mrs X asked the Council to raise her comments as a complaint, and for the Council to evaluate the assessment for discrimination.
32. The Council told Mrs X it had not accepted her comments as a complaint at that time because it intended to discuss her dissatisfaction with the assessment at a pre-arranged meeting. The Council said it would consider taking a complaint if Mrs X remained dissatisfied after the meeting.
33. Mrs X told the Council she and Mr X did not wish to proceed with the meeting as it was due to be held with the officer who produced the assessment. Mrs X said she considered the meeting was not viable and asked the Council to investigate her complaint that it had discriminated against her and Mr X.

Our previous investigation

34. Mr X brought his complaint to us in September 2021. We investigated (under reference 21009243) and found no fault with how the Council dealt with Mr X’s correspondence about inaccuracies within the assessment. We issued a final decision on 25 January 2022. As part of the final decision, the Council agreed to look into Mr X’s complaint about discrimination.

What happened next

35. The Council considered Mr and Mrs X’s complaint under the children’s statutory complaints process, including their concerns the child and family assessment of August 2021 contained discriminatory language.
36. On 7 February 2022, the Council provided its stage one response. It apologised for using a specific term which caused offence to Mr and Mrs X and said it had made alterations to its database to ensure their ethnicity, language and religion were correctly recorded. The Council said the assessment sought the views of Mr and Mrs X’s children and said while Mr and Mrs X may not agree with information obtained from other sources, it was important to record them. The Council said it had added Mrs X’s comments to its system so they could be read alongside the assessment.
37. Mr X escalated the complaint to stage two on 7 February 2022 and maintained the assessment discriminated against his nationality and religion.
38. The Council provided its stage two response on 20 July 2022. It did not uphold the complaint that the assessment inferred Mr and Mrs X held racist and homophobic views. However, it did uphold a complaint that the social worker did not invite Mr X to speak with them at the assessment. The Council apologised and said it had reminded staff of the importance of directly approaching key family members in assessments. The Council considered Mr and Mrs X’s complaint that it did not look at the issues regarding alleged discrimination until after the Ombudsman’s investigation; it found this complaint to be out of scope given that the matter was previously investigated by us and no fault was found.
39. Mr and Mrs X asked the Council to escalate the complaint to stage three. On 25 October 2022, the Council held the stage three panel meeting. The panel agreed with the findings of the stage two investigation but recommended the investigating officer from stage two address the issue of discrimination in an addendum to their report.
40. The Council provided its final complaint response to Mr and Mrs X on 24 November 2022. It agreed with the findings of the stage three panel, but disagreed with the recommendation to provide an addendum to the stage two report. It said this was because the Council regarded Mr and Mrs X’s complaint about alleged discrimination was considered directly at stage one, and throughout the stage two report.
41. Mr and Mrs X remained dissatisfied with the Council’s response and brought their complaint to us.
42. Analysis
43. Mr and Mrs X complain the Council did not consider its duties under the Equality Act 2010 when it carried out the child and family assessment in August 2021.
44. The Council says it does not accept it treated Mr and Mrs X differently because they were not born in the UK. It says although the child and family assessment does refer to Mr and Mrs X’s place of birth, the information is factually accurate and is relevant regarding the family background.
45. I have reviewed the Council’s records, including a copy of the record of the meeting held on 15 July 2021 as part of a review carried out by the team around the family and the child in need team. The record shows Mrs X was present at the meeting, as was Child Y (although not for the whole meeting). The record of the meeting refers to a comment regarding differences in upbringing between Mr and Mrs X and Child Y, and that certain actions which may be possible in Mr and Mrs X’s place of birth in response to certain behaviours, would not be possible in the UK. This comment was made by Child Y’s social worker and is recorded as being information given to them by Child Y.
46. The Council says a social worker also spent time with Child Z as part of the assessment process, to understand their wishes and feelings. It says this included discussion about their relationship with Mr and Mrs X.
47. One of the main provisions of the Equality Act 2010 is the duty not to discriminate against people based on legally defined protected characteristics, including national origin. Mr and Mrs X say they feel the Council treated them less favourably than someone born in the UK.
48. To decide whether someone has been treated less favourably, a comparison must be made with how the Council treated other service users or would have treated them in similar circumstances.
49. As per Working Together to Safeguard Children, it is important for councils to have a co-ordinated approach where other assessments have taken place. The guidance states “every assessment must be informed by the views of the child as well as the family…” and “anyone working with children should see and speak to the child: listen to what they say; take their views seriously; and work with them and their families collaboratively when deciding how to support their needs”.
50. The Council recorded information collated as part of its team around the family, child in need and child and family assessments. This included the views of Mr and Mrs X’s children; the record of the meeting on 15 July 2021 indicates Child Y said their parents’ upbringings were different to theirs, and that “they needed to understand they were not in [Mr and Mrs X’s country of birth]”.
51. It is more likely than not the Council would have recorded the views of other service users’ children as part of its assessments and reviews. This is because the statutory guidance requires councils to do this.
52. I have seen no evidence to indicate the Council failed to consider its duties under the Equality Act 2010. The Council sought the children’s views as well as Mr and Mrs X’s as part of the child and family assessment process. While I acknowledge the comments regarding Mr and Mrs X’s nationality caused distress, there is no evidence this was included due to a lack of consideration of the Council’s duties under the Equality Act; the information provided indicates it was the result of collating information from the family as part of the assessment process. There is therefore no evidence of fault for this aspect of the complaint.

Delay in consideration of the complaint

53. As previously stated, the children’s statutory complaint process sets out specific timescales for the consideration of a complaint. The evidence shows there were delays by the Council in this respect.
54. The Council acknowledges there was an unacceptable delay in facilitating the escalated elements of the complaint and says it has taken steps to address this. This includes increasing the number of persons made available to act as independent officers and investigators, and panel members. The Council says it has also recruited a senior complaints officer to assist with its increased workload.
55. It is positive the Council has taken the above steps; however, the statutory complaints process is clear regarding the required timescales. As a result, the delay incurred is fault, which caused avoidable frustration to Mr and Mrs X.

Back to top

Agreed action

56. To address the injustice caused, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mr and Mrs X for the fault identified. The Council’s apology should be in accordance with our revised guidance on remedies, published on our website;
2. Make a payment of £150 in recognition of the avoidable frustration caused by the delay identified, and
3. Remind staff of the importance of adhering to the timeframes specified in the children’s statutory complaint process.
57. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

58. I have found fault by the Council and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman