Summary: Mr X complained the Council failed to ensure the young person he fosters received suitable education. The Council was at fault for failing to consider Mr X’s complaint under the children’s statutory complaints procedure. This meant Mr X went to unnecessary time and trouble going through the Council's corporate complaints procedure and complaining to the Ombudsman. The Council has agreed to apologise and complete an investigation under stage two of the statutory procedure. It will also carry out training for relevant staff.

The complaint

1. Mr X complained the Council failed to ensure the young person he fosters, W, received a suitable education. Mr X said this made W distressed and feel isolated.

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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)
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.

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How I considered this complaint

5. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• 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.
6. 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

Relevant law and guidance

Children Act 1989

7. Section 20 of the Children Act 1989 says 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.

8. A council can either provide the accommodation directly or arrange for accommodation to be provided (for example through a fostering arrangement). A child accommodated in this way is a ‘Looked After Child’ (LAC).
9. Section 22 of the Children Act 1989 says a council has a duty to safeguard and promote the welfare of all looked after children it is responsible for. The duty includes a requirement to “promote the child’s educational development” (Section 22 (3A)).
10. For a council to meet this duty, it must produce a care plan which it must keep under regular review. Care plans must include a personal education plan (PEP).

The statutory children’s complaints procedure

11. Councils are required by law to consider complaints about certain issues using specific procedures. Some matters, such as school transport, go through an appeal process. Others, like adult social care and complaints about the actions of councillors have their own complaints processes.
12. Complaints about some issues relating to children must be responded to using the statutory children’s complaints procedure. The procedure was set up to give children and those representing them an opportunity for a thorough independent investigation of their concerns.
13. The statutory procedure has three stages:
• Stage 1 - local resolution by the council.
• Stage 2 – an investigation by an investigating officer who will prepare a detailed report and findings. The investigation is overseen by an independent person to ensure its impartiality. The council then issues an adjudication letter which sets out its response to the findings.
• Stage 3 – a review panel with an independent chair to consider their outstanding issues.
14. The law sets out what issues must be considered using the statutory complaints procedure. This includes how the councils meet the duties set out in Part 3 of the Children Act 1989. Section 20 and 22 of the Children Act 1989 come under Part 3.

Corporate complaints procedures

15. Complaints about council functions which do not come under a specific procedure or appeal process are normally considered using a process typically called the corporate complaints procedure.
16. The Council's corporate complaints procedure has two stages. At stage one, the department responsible for the actions complained about response to the complaint. At stage two, a complaints officer carries out an investigation and review of the stage one response.

What happened

17. Mr X fosters a young person, W, who is a LAC under the care of the Council. Mr X and W live in a different council's area (Council B). In late January 2023, Mr X complained to the Council. He said W had been out of full-time education for six months.
18. The Council responded to Mr X’s complaint through both stages of its corporate complaints procedure. It found Council B had funded three days of education per week. Council B had asked it to fund a further two days per week. The Council acknowledged that after it reviewed W’s PEP in late 2022, it delayed taking action to agree that funding.
19. Mr X remained dissatisfied with the Council's response to his complaints and complained to the Ombudsman. In response to contact from us, the Council said:
• Mr X’s complaint related to W’s education, not children’s social care so it used the corporate complaints procedure; and
• in any event, it is not responsible for W’s education; that is for Council B.
20. The manager who responded to Mr X’s complaint at stage one said they were not aware there was an option to use an alternative complaint procedure.

Findings

21. Councils should use the children’s statutory complaints procedure for complaints about actions they take to meet their duties under Part 3 of the Children Act 1989. This includes Section 22 (3A); the Council's duty to promote the educational development of a Looked After Child. It therefore does not always follow that a complaint about education should go through the corporate complaints procedure, as the Council suggested to us.
22. In addition, the Council told us it is not responsible for W’s education. The duty under Section 22 (3A) remains regardless of which council area the child or young person lives in. The Council maintains a PEP for W and reviewed it in late 2022. Furthermore, it accepted in its response to Mr X’s complaint that it had delayed taking action to agree funding for W’s education. This shows it was aware it had a role in W’s education.
23. The Council failure to respond to Mr X’s complaint using the children’s statutory complaints procedure was fault. The statutory procedure provides an important, independent, route of redress for vulnerable children, young people and those acting on their behalf. The fault meant Mr X had to go through the wrong complaints procedure and complain to the Ombudsman unnecessarily.

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Agreed action

24. Within one month of the date of my final decision, the Council will apologise to Mr X for the time and trouble he went to pursuing his complaint through the corporate complaints procedure needlessly.
25. The Council will complete a stage two investigation into Mr X’s complaint within 65 working days of the date of my final decision.
26. Within three months of the date of my final decision, the Council will remind relevant staff that Section 22 (3A) of the Children Act 1989 means complaints about the education of a Looked After Child should be considered using the statutory children’s complaints procedure.
27. The Council will provide us with evidence it has complied with the above actions.

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Final decision

28. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman