Summary: Mr and Mrs X complained about the Council’s investigation under the statutory children’s complaints procedure around its involvement which their daughter, F’s care. The stage 3 review panel was not carried out in line with statutory guidance, which was fault. However, this did not cause Mr and Mrs X an injustice and there is no worthwhile outcome in holding a fresh panel. The Council agreed to take action to prevent recurrence of the fault.

The complaint

1. Mr and Mrs X complained about the Council’s investigation of their complaint under the statutory children’s complaints procedure about its involvement with their daughter, F’s care. Mr and Mrs X said the complaint process took over three years and the Council refused to investigate most of their complaints.
2. Mr and Mrs X say their complaints remain unresolved which has caused them distress, uncertainty and time and trouble.

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The Ombudsman’s role and powers

3. 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)
4. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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)
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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How I considered this complaint

7. I spoke to Mr X about his complaint and considered information he provided.
8. I considered information from the Council including the stage two investigation report and the stage three panel report.
9. Mr and Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

Children’s statutory complaints procedure

10. Section 26(3) of the Children Act (1989) says all functions of the Council under Part 3 of the Act may form the subject of a complaint under the statutory complaints procedure.
11. Complaint investigations under the statutory procedure consist of three stages.
• Stage 1: Staff within the service area complained about try to resolve the complaint. Councils have up to 20 working days to respond.
• Stage 2: An Investigating Officer (IO) and an Independent Person (IP) investigate the complaint. The IO writes a report which includes details of findings, conclusions and outcomes against each point of complaint (i.e. “upheld” or “not upheld”) and any recommendations to remedy injustice to the complainant. The IP monitors the investigation to ensure its impartiality and thoroughness.

Once the IO has finished the report, a senior manager should act as adjudicating officer. They will consider the complaints, the IO’s findings, conclusions, and recommendations, as well as any report from the IP, and the complainant’s desired outcomes. The adjudicating officer should write to the complainant with their decision on each complaint. Councils have up to 13 weeks to complete stage two of the process from the date of request.

• Stage 3: A review panel considers the complaint. Following the panel, the panel chair writes a report containing a brief summary of the representations and their recommendations for resolution of the issues (The Children Act 1989 Representations Procedure (England) Regulations 2006 19(2)). 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.
3. Unless there is evidence of fault in the investigation process, the Ombudsman will not usually re-investigate a complaint which has been through the full procedure. This is because a properly conducted investigation is independent and robust. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

Getting the Best from Complaints

13. Getting the Best from Complaints statutory guidance (the Guidance) outlines how councils should carry out the statutory children’s complaints procedure at each stage.
14. The Guidance states at stage 2 of the process, if a complaint is made orally, the Complaints Manager must ensure the details of the complaint and the complainant’s desired outcome are recorded in writing and agreed with the complainant. There is no such requirement for complaints made to the Council in writing. However, in practice, if a written complaint is long, confused or unclear, it is good practice for councils to prepare an agreed statement of complaint.
15. The Guidance outlines the role of the stage 3 review panel and the Chair of the panel. The Guidance says the panel should not reinvestigate the complaints, nor should it consider complaints that have not been first considered at stage 2. It says the panel should be conducted as informally as possible with the focus on the agreed complaint. The Guidance makes clear that review panels are designed to listen to all parties who attend, including the IO and IP. It should not be a ‘quasi-judicial’ process, so it should not feel like a court room and there should not be a need for the presence of lawyers.

What happened

Background and Mr and Mrs X’s complaints

16. The issues and circumstances around Mr X’s complaint go back a number of years. Mr and Mrs X are the adoptive parents of (at the time of complaint) a teenage child, F. The Council removed F from Mr and Mrs X and into its care in early 2020 and obtained an interim care order in August 2020. The Council obtained a full care order in December 2021. Since April 2021 F has lived in a secure residential care accommodation.
17. In October 2020 Mr and Mrs X complained to the Council about a lack of care for F and that the Council had not adequality considered their views or involved them in decisions about F’s care. The Council started investigating the complaints under its corporate complaints procedure.
18. Unhappy with the stage 1 response Mr and Mrs X escalated the matter to stage 2. They provided the Council with 54 points of complaint. The Council issued its stage 2 response in March 2021. Mr and Mrs X were unhappy with the response and complained to us. However, we declined to investigate at the time due to an ongoing related court case.
19. Mr and Mrs X complained to us again in April 2022. We found the Council should have investigated the complaint under the statutory children’s complaints procedure and not its corporate complaints process. The Council accepted our findings and agreed to start a stage 2 investigation under the statutory procedure. We issued a final decision in April 2022 declining to investigate on that basis.

The stage 2 investigation

20. The Council appointed an IO and IP in April 2022 who met with Mr and Mrs X to discuss their complaint in May 2022. Mr and Mrs X agreed and signed a statement of complaint in August 2022. The statement of complaint contained two main points of complaint including around how the Council handled their original complaint. The IO focussed on examples taken from their original 54 points of complaint. Records show Mr and Mrs X made various communication exchanges with the IO and IP and were able to make amendments to the statement of complaint before confirming they were happy to proceed.
21. The IO completed their report in November 2022 and did not uphold any of Mr and Mrs X’s complaints. Despite this, they recommended the Council work with Mr and Mrs X around a ‘working together agreement’ which was in place at the time around F’s care to ensure it was necessary and appropriate. The stage 2 adjudication officer agreed with the findings of the IO and with this recommendation.
22. Mr and Mrs X disagreed with the findings of the stage 2 investigation and asked the Council to hold a stage 3 review which it did in March 2023. Mr and Mrs X’s main concern was that the Council had not properly considered their complaints, specifically all 54 points which they had initially submitted in 2020. The panel found:
• the original 54 points of complaint were important to Mr and Mrs X;
• there was clear disagreement as to how the statement of complaint was organised and whether that process was fair to Mr and Mrs X;
• the statement of complaint was not customer led; and
• the decision not to accept 54 points of complaint was not made in conjunction with the Complaints manager.
23. The panel upheld and partially upheld Mr and Mrs X’s complaints around how their original complaint was handled, concluding some elements of the corporate complaint could have been handled more adequately. The panel made no finding around the handling of a ‘working together agreement’ issued when the Council obtained a care order for F.
24. The panel made comment about how the IO and IP had arrived at their conclusions which the Chair said did not go into sufficient detail. The panel also noted the IO refused to answer panel questions and made comment about the IO and IP challenging Mr and Mrs X’s opinion of the stage 2 report.
25. The stage 3 panel made recommendations, including:
• reminding IO and IPs to be precise in writing statements of complaint;
• that the Complaints Manager appropriately intervenes during the process of drawing up statements of complaint;
• reminding IO and IPs of the expectation to cooperate during panel meetings; and
• offering Mr and Mrs X a payment to acknowledge the time and trouble experienced during the complaint process.
26. The Council wrote to Mr and Mrs X with its stage 3 adjudication letter and final response in May 2023. The adjudicating officer said it would not consider the adequacy of the initial response as it was not part of the statutory process. They did not uphold the complaint around the working together agreement. It apologised for the length of time taken to complete the stage 2 investigation, which was outside of statutory timescales, and offered Mr and Mrs X £150 to acknowledge this. The adjudicating officer thanked the panel for the recommendations around the IO and IP and said they would ask the Complaints Manager to consider them.
27. Mr and Mrs X remained unhappy and complained to us.

The Council’s response to us

28. The Council’s response included a statement from the IO. The Council said the Chair of the stage 3 panel was particularly critical of the IO and IP, specifically around the creation of the statement of complaint which it did not agree with. The Council said Mr and Mrs X signed the statement of complaint, confirmed they were happy with it and provided evidence showing they had the opportunity to make amendments.
29. The IO’s opinion was that the stage 3 panel Chair did not hold the panel meeting in line with statutory guidance. The Complaints Manager said that on reflection they could have called a halt to the panel at the time because it was not carried out in a balanced fashion. The IO said they felt the Chair was not objective and took an adversarial approach without giving proper opportunity to answer questions. The IO said they felt ‘bullied’ by the Chair.
30. The Council said the adjudicating officer’s letter was deliberately non-committal in terms of the recommendations because they were not grounded in evidence. The Council said the stage 3 recommendations were felt to be that of the Chair and not the whole panel. After considering the recommendations the Council said it did not feel it necessary to take forward the stage 3 recommendations.

My findings

31. It is not our role to reinvestigate matters which have already been subject to a properly conducted and independent investigation. To do so would not be a good use of public resources. Instead, our role is to consider the following.
• Was the investigation properly conducted and are the conclusions evidence based. If not, would the Ombudsman reach a different view based on the information available to us?
• Did the Council offer a proportionate remedy for the injustice caused by fault? If not, would the Ombudsman recommend any further remedial action?
• Has the Council fully implemented any agreed remedy? If not, has the delay caused any further injustice to the complainant?
32. Mr and Mrs X are unhappy about how the Council initially handled their complaint under the corporate complaints procedure. The Council has already accepted it should have initially investigated their complaints under the statutory procedure and we have already issued a decision in relation to this. I have not therefore considered this further.
33. The stage 2 investigation was properly conducted, albeit delayed, which the Council has already provided a remedy for. I acknowledge Mr and Mrs X ultimately believe their complaints were not considered in full. However, Mr and Mrs X agreed a statement of complaint which they signed. There is also evidence of communication with the Council about the statement of complaint where they were able to articulate changes before signing the statement. This was in line with the Guidance and therefore, there was no fault with how the stage 2 investigation was carried out.
34. The IO reviewed and considered relevant information, spoke to Mr and Mrs X and carried out interviews with F’s social worker and other relevant officers. The IP raised no concerns and agreed with the IO’s findings and conclusions. So, I find no fault in how the stage 2 investigation was carried out.
35. There is however some doubt around whether the stage 3 review panel was properly carried out. I say this because of the following reasons.
• The panel focussed on areas outside of the stage 2 investigation, such as how the Council handled the original corporate complaint and the original 54 points of complaint which were not all considered as part of the statutory procedure.
• The panel felt the creation of the statement of complaint was not customer led. However, there is evidence showing Mr and Mrs X did have input in the process. The panel’s findings were therefore not evidence based.
• The IO, IP and the Complaints Manager have all raised concerns about the conduct of the Chair, which they said was not in line with statutory guidance.
36. Given the above, on balance, the stage 3 panel was not carried out in line with statutory guidance which was fault. However, this did not cause Mr and Mrs X an injustice because the chair’s conduct did not undermine the outcome for Mr and Mrs X who were satisfied with the how the panel meeting was carried out. They confirmed the stage 3 panel report was accurate to what they experienced. Given this, there is no worthwhile outcome in holding a fresh stage 3 panel. However, the Council should take action to ensure that future stage 3 panels are conducted in line with the statutory guidance to prevent recurrence of the fault and any injustice being caused to others.

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Agreed Actions

37. Within three months of the final decision, the Council agreed to review how it appoints and trains its stage 3 panel chairpersons and panel members. It should ensure that all stage 3 chairpersons have sufficient knowledge and experience to conduct stage 3 panels in line with the statutory guidance. It should also ensure it has appropriate quality monitoring processes in place to ensure stage three panels are held in line with the statutory guidance going forward.

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Final decision

38. I completed my investigation. I found fault and made recommendations for the Council to prevent it occurring again in future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman